Appeal, No. 157, March T., 1960, from judgment of Court of Common Pleas of Armstrong County, June T., 1959, No. 388, in case of Marjorie Slobodzian, a minor, et al. v. William Beighley. Judgment affirmed.
Harry A. Heilman, Jr., with him Blair F. Green, for appellant.
James G. Callas, with him John C. Millard, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BOK
The minor plaintiff fell into an open cellarway behind a store and, with her mother as guardian, sued the owner. Defendant appealed when, following a jury's verdict for the plaintiffs, his motions for a new trial and for judgment n.o.v. were overruled.
Three questions are presented: the defendant's negligence, the minor's contributory negligence, and her status as trespasser or gratuitous licensee. No trial errors are alleged.
The mise-en-scene is an open area or parking lot behind defendant's supermarket at Main, Bridge, and Diamond Streets in Leechburg, Armstrong County, at ten o'clock on a November night. Main Street, running east and west, bounds the property's 119 feet of frontage on the north, but the building occupies only 96 1/2 feet of this length; at the eastern side of the building there is a 3-foot sidewalk and beyond it an 18-foot parking lot on defendant's property and bordering on Bridge Street, which forms the eastern boundary of the property. The western boundary consists of other buildings. The southern boundary is Diamond Street, which parallels Main. The market building does not run the full length of the lot, which is 120 feet, from Main to Diamond, but occupies only 99 1/2 feet. This leaves an open L-shaped area, all of it on the defendant's property, the southern arm 20 feet wide and the eastern 18 feet, and this is used for parking by the patrons of the market; the sidewalk allows them to pass from the front entrance on Main to the side and rear, in order to reach their cars, and it extends no
farther south than the southern wall of the building. Nothing but a white line separates the parking area from Bridge and Diamond Streets; it is blacktopped and flush with them.
The cellarway into which the minor plaintiff fell is roughly in the center of the rear of the market building; it is 16 feet long, 3 1/2 feet wide, and has nine steps leading to its bottom depth of 7 feet 1 inch. Its long northern side is the southern wall of the building, and it is used as a fire exit. There was no railing around it except a curbing 10 inches wide and 5 inches higher than the surrounding surface of the parking lot. The southern edge of the cellarway is 18 feet from Diamond Street, and its eastern side about 60 feet from Bridge Street. An outside chimney extending 18 inches into the parking area forms part of its eastern wall.
There is a street light at the corner of Bridge and Diamond, and a system of private lights on the southern wall of the market, but the latter were turned out after closing the market; they were not lighted at the time of the ...