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LOEB v. ALLEGHENY COUNTY. (01/12/59)

January 12, 1959

LOEB, APPELLANT,
v.
ALLEGHENY COUNTY.



Appeal, No. 1, March T., 1959, from judgment of Superior Court, Appeal No. 21, April T., 1958, affirming judgment of Court of Common Pleas of Allegheny County, Oct. T. 1953, No. 2728, in case of Edward Loeb v. Allegheny County. Judgment affirmed.

COUNSEL

H. N. Rosenberg, with him Rosenberg and Rosenberg, for appellant.

Robert Engel, Assistant City Solicitor, with him J. Frank McKenna, Jr., City Solicitor, for appellee.

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

Author: Bell

[ 394 Pa. Page 434]

OPINION BY MR. JUSTICE BELL.

This is an appeal from a judgment non obstante veredicto entered by the court below in favor of the City of Pittsburgh. Plaintiff was serving as a juror

[ 394 Pa. Page 435]

    on the 6th floor of the City-County Building*fn1 in Pittsburgh. When he was excused for lunch, instead of using one of the elevators, he walked down the stairway in the Diamond and Grant Street corner of the building. While walking down the steps between the 5th and 6th floors he stepped on a small spot of liquid, slipped on the liquid, fell and was injured. The liquid spot was less than the size of a half dollar and was colorless and odorless. Plaintiff did not see the liquid spot until after he fell, nor did he notice that the wall light was out. There was no proof what the liquid was, or who had placed it there, or how long it had been there, and there was no proof of actual or constructive notice to the City.

Plaintiff claims he is entitled to have his case submitted to the jury because a wall light near the place where he fell, was out, and had been out or unlighted for an hour and 45 minutes prior to the accident. The ceiling lights on the ceiling of the 5th and 6th floors were lighted at the time and there are windows in the vicinity of plaintiff's fall.

After plaintiff fell he looked and saw that his heel had slipped on the above mentioned small spot of liquid (on one of the steps). He testified that he did not notice the liquid because a shadow was cast across the step due to the wall light being out. Plaintiff repeated several times that he did not stumble or misjudge a step, but that it was the liquid spot which caused him to slip and fall.

It is hornbook law (1) that the mere happening of an accident is not evidence or proof of negligence; (2) that plaintiff has the burden of proving that defendant was negligent and that its negligence was the proximate cause of the accident; (3) that a jury is not permitted to speculate or guess; conjecture, guess

[ 394 Pa. Page 436]

    or suspicion do not amount to proof: Lanni v. Pa. P.R., 371 Pa. 106, 88 A.2d 887 (and numerous cases cited therein); Ebersole v. Beistline, 368 Pa. 12, 82 A.2d 11; Gayne v. Philip Carey Manufacturing Co., 385 Pa. 618, 123 A.2d 432; Schofield v. King, 388 Pa. 132, 130 A.2d 93. Moreover, in this kind of case plaintiff must prove that defendant had actual or constructive notice of the dangerous or unsafe condition which caused his injury: Lanni v. Pa. P.R., 371 Pa., supra; DeClerico v. Gimbel Brothers, Inc., 160 Pa. Superior Ct. 197, 50 A.2d 716.

The liquid could have been dropped a few minutes before plaintiff fell. Under these facts and circumstances it is crystal clear that plaintiff cannot recover if the spot of liquid was the proximate cause of the accident: Lanni v. Pa. P.R., 371 Pa., supra. In the Lanni case plaintiff slipped on a grease spot which was on defendant's driveway and was covered with dust or dirt.

Plaintiff contends that the proximate cause of the accident was the absence of light. Defendant contends that the absence of light was not the proximate cause, but that even if it were, plaintiff failed to prove constructive notice in view of the size of the building and the short period of time the light was out.*fn2 We

[ 394 Pa. Page 437]

    shall assume, arguendo, that the light was out a sufficient length of time to justify submitting the question of constructive notice to the jury, if absence of light was the proximate cause of plaintiff's fall. However, we agree with the Superior Court that the liquid spot, and not the absence of the side (wall) light, was the proximate cause of plaintiff's fall. The case is ruled by DeClerico v. Gimbel Brothers, Inc., 160 Pa. Superior Ct., supra. In that case Judge (later Justice) ARNOLD aptly stated (page 198):

"... The wife-plaintiff testified that she was descending the defendant's dimly lighted stairs leading to the subway, and she stepped upon a piece of paper which seemed to have under it a soft, mushy substance which caused her to fall. The paper covered about one-half, horizontally, of the tread of the step. The testimony showed that the stairway was generally dirty and had been, for a considerable number of days, littered with pieces of dirty, torn newspapers.

"The legal cause of the accident, i.e., the substantial factor of the plaintiff's harm, was the alleged soft substance underneath the paper on which she stepped. The newspaper did not cause her to fall, it caused the alleged danger to be hidden, and it could not be considered as the substantial factor of her harm.

"In what may be termed the obscuration cases, i.e., where the dangerous condition is hidden by some substance such as water, snow, paper or confusing lights, the obscuration is never the legal cause of the harm,*fn3 but operates in certain cases to relieve the injured party from the contributory negligence of failing to observe the danger... Since the legal cause of the plaintiff's harm was the soft substance on the tread of the step, there can be a recovery only upon a showing

[ 394 Pa. Page 438]

    caused plaintiff to fall was three inches in diameter, and had been on defendant-storekeeper's stairway for more than two hours. This Court held that these facts were sufficient evidence of constructive notice to take the case to the jury. The Court also held that the fact that shadows concealed the grease from plaintiff's view was sufficient to take the case to the jury on the question of her contributory negligence.

We have considered all the authorities upon which plaintiff relies, as well as those produced by our own research, and are convinced that they are all distinguishable on their facts from the instant case and do not support plaintiff's contention

Disposition

Judgment affirmed.

ING OPINION BY MR. JUSTICE MUSMANNO:

The action of this Court, if allowed to stand, perpetrates a gross injustice.

Edward Loeb was called for jury duty in the Court of Common Pleas of Allegheny County and, like a good citizen, he responded to the call, attending on the Court in the City-County Building, a nine-story structure, in Pittsburgh. On the third day of his jury service he was excused for lunch at 11:30 a.m., and he proceeded to descend to the first floor from the seventh floor via the steps provided for that purpose, the elevator being crowded at that hour. The wall light in the staircase between the sixth and fifth floors was not burning. The resulting dimness threw a layer of obscuration over the steps, not enough to black out the ...


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