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DAVIDSON ET UX. v. UPLAND BOROUGH. (11/12/57)

November 12, 1957

DAVIDSON ET UX., APPELLANTS,
v.
UPLAND BOROUGH.



Appeals, Nos. 242-245, Oct. T., 1957, from judgments of Court of Common Pleas of Delaware County, Dec. T., 1955, No. 371, and June T., 1955, No. 2267, in case of Joseph T. Davidson et ux. v. Borough of Upland et al. Judgments affirmed.

COUNSEL

Paul C. Van Dyke, with him Cochrane & Van Dyke, for appellants.

Robert W. Beatty, with him Butler, Beatty, Greer & Johnson, for appellee, Borough of Upland.

Edward S. Lawhorne, for appellee, Delaware County Housing Authority.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Hirt

[ 184 Pa. Super. Page 560]

OPINION BY HIRT, J.

Upland Terrace is a housing project in the Borough of Upland, under the management of Delaware County Housing Authority. The plaintiffs contemplated moving from one dwelling house in the project to another. For the purpose of inspection the wife-plaintiff, on application to the office of the management, was given a key to a house identified as 307 Lane C which recently had been vacated by the former tenant. Concrete steps provide the only means of access to the front door of the house. This plaintiff testified that in mid-afternoon of January 18, 1955, a bright, clear dry day, she went to the premises and as she approached she "noticed there was quite a bit of trash around the house, and the

[ 184 Pa. Super. Page 561]

    steps were covered with old, dirty brown newspapers ..." She testified: "I noticed a couple of brown paper bags [on one side of the stepes]; on the other side I noticed a broken wheel, a little broken wheel ... and ... newspapers were scattered all around the steps"; and further; "noticing these things on the steps, I gingerly walked up these steps, picking my way through the trash, and opened the screen door and then unlocked the main door with the key ..." There is a concrete platform in front of the doorway from which two steps lead down to a walk paved with slate slabs. This walk is only a few feet in length and extends to the top of the main flight of six concrete steps which provides access from the street. This plaintiff was inside the house for less than a half-hour and on leaving after taking one step she slipped and fell to a slate slab at the bottom of the two upper steps of the stairway and was injured. In the actions the jury found for her in the sum of $5,000 and for the husband-plaintiff in the sum of $2,000, against both defendants. The court en banc however, subsequently entered judgment for the defendants n.o.v. in both actions. These appeals are from that order.

In the lower court the question of the wife's contributory negligence was neither raised nor considered. And the only testimony in the case bearing upon the question of negligence of the defendants was that of the wife-plaintiff herself. Specifically, proof of negligence must rest if at all on the following excerpts from her testimony: "... while I was turning around [after closing the screen door on leaving the premises] I felt my left foot slipping from under me." Referring to the slate walk, to which she fell, she stated: "... I was in a half-sitting position; and I noticed that on the back of my shoe [on the heel] there was a wet, slippery orange peel"; and to the question: "How large was that?" she

[ 184 Pa. Super. Page 562]

    said: "Oh, I would say it was not any bigger than a dime." In concluding her testimony on the subject of the defendants' negligence she said that, from her sitting position on the walk, she observed a ...


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