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HILSCHER v. ICKINGER ET UX. (12/30/60)

December 30, 1960

HILSCHER
v.
ICKINGER ET UX., APPELLANTS.



Appeal, No. 251, Oct. T., 1960, from orders of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1957, No. 2767, in case of Helen Hilscher, widow, v. Fred Ickinger et ux. Order refusing judgment n.o.v. affirmed; order granting new trial reversed.

COUNSEL

Michael A. Foley, for appellants.

Alan Kahn, with him Winokur & Kahn, for appellee.

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

Author: Woodside

[ 194 Pa. Super. Page 239]

OPINION BY WOODSIDE, J.

This is an appeal by the defendants from the refusal of the court below to grant judgment n.o.v., and from the granting of a new trial for inadequacy of a jury verdict of $3000 in a trespass action.

Helen Hilscher, a 70 year old widow, visited Carletta and Fred Ickinger, her daughter and son-in-law, at their home, 2656 South 72nd Street, Philadelphia, on May 12, 1957. She arrived between 6 and 7 o'clock in the evening and left about 11:45 P.M. An open concrete porch in front of the Ickinger house is separated from the porch of the adjoining premises by an iron railing which extends from the wall of the house to the front edge of the porch and down a flight of three steps to a pavement below. The railing is supported by metal uprights imbedded in the concrete porch and steps.

When the plaintiff, with a plant in her right hand and a pocketbook in her left hand, stepped off the porch to the top step, she "hit this hard object that was there, and it twisted [her] foot and down [she] went." The plaintiff suffered injuries in her fall for which she brought this action against her daughter and son-in-law who owned the premises where she fell. The plaintiff

[ 194 Pa. Super. Page 240]

    apparently stepped upon a wooden wedge, approximately 4 1/2 inches long, 1/2 inch wide and tapering from 1/2 inch thick to paper thin, which came from between the upright bars of the railing and one of the concrete steps, where it had been first driven into place by Fred Ickinger three or four years before in order to steady the railing and keep it firm.

The plaintiff looked at the step and did not see the wedge when she went up the steps that evening. There was no evidence from which it could be inferred that the defendants had either actual or constructive notice of the presence of the wedge on the step. See Lanni v. Pa. R.R. Co., 371 Pa. 106, 110, 88 A.2d 887 (1952).

As a social visitor at the home of her daughter, the plaintiff was a gratuitous licensee, Restatement of Torts, § 331, Comment (a)(3), and was entitled at most to knowledge of such dangerous conditions as the defendants knew. Restatement of Torts, § 342, ...


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