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BIZICH v. SEARS (03/17/58)

March 17, 1958

BIZICH, APPELLANT,
v.
SEARS, ROEBUCK AND COMPANY.



Appeals, Nos. 241 and 242, March T., 1957, from judgments of Court of Common Pleas of Westmoreland County, Jan. T., 1955, No. 321, in cases of Stanko Bizich and Kathryn Bizich v. Sears, Roebuck and Company. Judgments affirmed.

COUNSEL

A. C. Scales, with him John D. Lyons, Jr. and Scales & Shaw, for appellants.

B. Patrick Costello, with him Louis J. Goffman, Smith, Best and Horn, and Wolf, Block, Schorr & Solis-Cohen, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Chidsey

[ 391 Pa. Page 641]

OPINION BY MR. JUSTICE CHIDSEY

The jury found for the defendant in these actions of trespass arising out of a fall by the wife-plaintiff on a flight of stairs in the Greensburg Store of Sears, Roebuck and Company. From judgments entered following refusal of their motions for new trial, plaintiffs appeal. Appellants complain of certain errors in the admission of evidence and to the charge of the court.

The fall occurred on March 21, 1953 in the early evening at the top of the main stairway leading from the first floor of the store to the basement floor. Wife-plaintiff, Mrs. Kathryn Bizich, accompanied by her daughter and son-in-law, had been shopping in defendant's store and their business there involved a visit to the plant department in the basement. The stairs to the basement consisted of fourteen steps or treads approximately 5 1/2 feet wide, covered with asphalt tile material with a one and one-quarter inch metal edging or nosing along the forward edge of each step which was fastened down with metal screws. A wooden handrailing ran along each side of the steps.

Plaintiffs' son-in-law went down the steps first, followed by their daughter, and then Mrs. Bizich. With

[ 391 Pa. Page 642]

    respect to defendant's negligence, plaintiffs offered the following evidence: Wife-plaintiff testified that at the time of the accident she was wearing flat-heeled shoes. She stated that she stepped from the first floor level to the first step from the top with her right foot and as she stepped forward with her left leg, the heel of her left shoe caught in the metal strip extending along the top of the first floor forming the front edge of the first step. She grasped the handrail in her right hand but it was loose and she fell. Plaintiffs' son-in-law testified that he did not see Mrs. Bizich fall, but when he turned around he saw her lying on the third or fourth step from the top or first floor level. He further testified that the metal strip extending along the top of the floor forming the front edge of the first step stuck up an eighth of an inch, with one screw missing and that the handrail was loose. Plaintiffs' daughter, who also did not see her mother fall, testified that she observed the metal strip sticking up about an eighth of an inch immediately following the accident. This was the only testimony introduced with regard to the liability of defendant.

By way of defense to plaintiffs' evidence of negligence concerning the handrail and the metal nosing, defendant introduced evidence to the effect that its employes made a daily inspection of the steps for defects, including the morning of the accident, and that the store had a regular program of maintenance and inspection. One D. W. Hummell testified that he laid the asphalt tile on the steps nine months before the accident and at that time the nosing was flush with the floor and in perfect condition. He further stated in his opinion as a contractor with 15 years experience in laying floors, if one screw was removed from the nosing it would be necessary to use a metal pry with great leverage to raise up the nosing. Mr. Gaumer, assistant

[ 391 Pa. Page 643]

    manager of defendant's store, testified that he arrived at the scene of the accident shortly after it occurred and that he personally ran his hand over the nosing on the first step and found that it was not lifted up in any way. He stated that he also personally examined the handrail and found it in perfect condition. Mr. Gaumer asked wife-plaintiff how the accident occurred and Mrs. Bizich stated that she walked down the stairs sideways, that she must have tripped, and that her heel must have caught. Mr. Gaumer also questioned the daughter and son-in-law who stated that they had both examined the steps and there was nothing wrong with them. Miss Mary Myers, an employe of defendant, testified that she looked at the steps shortly after the accident and they appeared all right to her. Mr. Harry McNerny, another employe of defendant, stated that he arrived on the scene shortly after the accident, that he gave the handrail a jerk and found it not loose in any way and that he ran his foot over the nosing on the top step and it was not raised at all but was in perfect condition. Mr. David A. Milne, also an employe of the defendant who was working approximately fifteen feet from the scene of the accident, testified that shortly after the fall he examined the nosing by running his hand over the edging of the top step and found no defects. There was also considerable evidence that the nosing and handrailing were in proper order at the time of the trial and that their condition has not been altered since the accident.

The trial of this case took three days and the jury, in finding for the defendant, apparently accepted its version that the metal nosing and handrail were in no way defective at the time this accident occurred. There is no question that this finding is amply supported by the evidence, and appellants do not here contend that the verdict was against the weight of the evidence.

[ 391 Pa. Page 644]

Appellants contend first that the court erred in allowing defendant to introduce, over plaintiffs' objection, that the statements were legal conclusions, the prior written inconsistent statements of plaintiffs' daughter and son-in-law who, at the trial, denied making the statements. Twenty or thirty minutes after this accident occurred assistant manager Gaumer questioned wife-plaintiff and her two witnesses as to the circumstances surrounding the fall, had their statements reduced to writing and signed by each of the respective persons concerned. These statements were in general that there were no defects at all in the steps at the time of the fall, that the steps were well lighted and that the accident was not the fault of defendant. Appellants contend that the court committed reversible error in failing to explain to the jury the difference between substantive and impeaching testimony.

With respect to the prior inconsistent statement of the wife-plaintiff who was a party to this litigation, there is no doubt that her prior contradictory statement was admissible against her both as substantive evidence and for the purpose of impeaching her credibility. In Commonwealth, by Truscott et al. v. Binenstock, 358 Pa. 644, 57 A.2d 884, this Court said, at p. 654: "... 'In Kreiter v. Bomberger, 82 Pa. 59, at p. 61, Mr. Justice SHARSWOOD said: "It is clear that though a party has been examined in his own behalf as a witness, his admission out of court, though contradicting his evidence, are admissible without having first called his attention to them, as is necessary in the case of other witnesses. Such admissions constitute independent evidence of themselves, and are not admissible merely for the purpose of impeaching the credibility of the party as a witness, although incidentally they may also have that effect."' [Citing cases] ..."

[ 391 Pa. Page 645]

See also Morse Boulger Destructor Company v. Arnoni, 376 Pa. 57, 65, 101 A.2d 705.

Turning next to the prior inconsistent statements of plaintiffs' two witnesses, the law is clear*fn1 that a prior contradictory statement may be used to impeach the credibility of a witness, but is not substantive evidence of the truth of the matter stated. The prior inconsistent statements of plaintiffs' witnesses were competent for the purpose of affecting their credibility, and upon request their admission should have been limited to that purpose: Commonwealth v. Blose, 160 Pa. Superior Ct. 165, 172, 50 A.2d 742, and authorities therein cited; 53 Am. Jur., Trial, § 780. Here, however, no request for such an instruction was made and in the absence of such a request, the failure of the trial judge to instruct the jury that the prior inconsistent statements were admissible solely for the purpose of impeaching the witnesses' credibility, and should not be considered as substantive evidence, is not reversible error. A case squarely in point is Harrah v. Montour Railroad Company, 321 Pa. 526, 184 A. 666, where we said at pps. 527-528: "In defendant's case, one of the doctors at the hospital to which both plaintiff and his son were taken following the accident was permitted to testify, over plaintiff's objection that it was 'hearsay evidence,' that the son had told him both

[ 391 Pa. Page 646]

    he and his father had been drinking. Plaintiff now argues that this was not a part of the res gestae. The proposition may be conceded, but it does not follow that the admission of the evidence was improper. Previously, in plaintiff's own case, the son had denied that either he or his father had been using liquor. The statement of the doctor was clearly admissible, therefore for the purposes of contradiction, although it was incompetent to establish the truth of the facts therein stated: Scheer v. Melville, 279 Pa. 401; Zavodnick v. A. Rose & Son, 297 Pa. 86. Plaintiff argues that if it was admissible the court should have limited and defined the competency and legal effect thereof. We need only say that no such instruction was requested at any time during the course of the trial." (Emphasis supplied). In 53 Am. Jur., Trial, § 780, it is said: "Where appropriate, and on proper request, instructions as to impeachment of witnesses should be given. The failure to instruct with respect to the impeachment of a witness testifying against an accused is not reversible error in the absence of a request for such instruction. And the refusal of a request is not error where the matter is covered by the court's general charge, or where not applicable. ..."

There was ample, competent evidence, independent of the prior statements of plaintiffs' witnesses, that the steps and handrail of defendant's store were in no way defective at the time this accident occurred. Had the court been requested to point out the limited effect of the prior statements, it would undoubtedly have done so. Under repeated rulings of this Court, plaintiffs may not now be heard to complain. Furthermore, the trial judge in his charge did not tell the jury that they were to consider the prior ...


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