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GREEN v. PRISE. (05/02/61)

May 2, 1961

GREEN, APPELLANT,
v.
PRISE.



Appeal, No. 254, March T., 1960, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1957, No. 1967, in case of Howard S. Green v. Arthur B. Prise. Judgment reversed.

COUNSEL

Roslyn M. Litman, with her Litman & Litman, for appellant.

Randall J. McConnell, Jr., with him Dickie, McCamey, Chilcote & Robinson, for appellee.

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

Author: Musmanno

[ 404 Pa. Page 72]

OPINION BY MR. JUSTICE MUSMANNO.

For four and a half years prior to June 25, 1957, Howard S. Green was a milkman employed by the Otto Suburban Dairy. On that day he fell while delivering milk at an apartment house owned by the defendant, Arthur B. Prise. His milk bottles broke and jagged edges of glass severed the ulnar nerve of his right arm. Ulnar paralysis set in, immobilizing his fingers and reducing the hand to a claw-like member which cannot be used to grasp, hold, or even shake hands. Nor can it accommodate a glove. Green brought a suit in trespass against Prise, charging him with negligence in the maintenance of his premises. The jury awarded him a verdict of $11,000. The Court of Common Pleas of Allegheny County entered judgment n.o.v. The plaintiff appealed.

The apartment building of the defendant, located at 1300 Veto Street in Pittsburgh, has a front vestibule made up of a doorway, three wooden steps and a landing, level with the first floor. It was here that the accident which is the subject of this lawsuit occurred. Photographs introduced at the trial show that the three steps were covered with rubberized matting. The top mat (that is, the one covering what was referred to

[ 404 Pa. Page 73]

    throughout the trial as the "third step") had an irregular hole in the center of it.

In the plaintiff's own language the accident happened in the following manner: "As I was walking up the steps, put my foot on the third step, the covering of the step slipped and the toe of my right foot caught on that covering and started my fall. As I did, I was in the process of putting my left foot up to the landing, and the linoleum covering there gave and the heel of my foot caught on it. I knew I was falling. I threw my bottles out. As I was falling, I tried to grab for a railing to stop my fall, but there was no railing there in the apartment, and then I fell on top of the glass."

Mrs. Julia King, who had been living in the apartment house for twenty years, testified that the rubber mat which covered the third step was badly worn and that in the center it had thinned to such an extent that one could see the surface of the wood beneath. She also said that the linoleum on the landing was "loose on the edge." She testified that this condition had existed for a year or more.

The testimony of the plaintiff and the testimony of Mrs. King, plus the photographs, established a condition which would justify a jury in finding that the owner of the apartment house failed in maintaining the premises as required by law for the safety of business visitors, in which category the plaintiff could certainly be placed. Section 343 of the Restatement of Torts reads:

"Section 343. DANGEROUS CONDITIONS KNOWN TO OR DISCOVERABLE BY POSSESSOR. A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they

[ 404 Pa. Page 74]

    will discover the condition or realize the risk involved therein, and (c) invites or permits them to enter or remain upon the land without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to give warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive, if the possessor is a public utility."

There can be no question that the defendant would have discovered the dangerous condition of the steps, as described by Mrs. King, if he had exercised reasonable care. In fact, he testified that when he purchased the property (four months prior to the accident) he inspected the building and on many other occasions reinspected it. Thus, he cannot claim that he did not have an opportunity to see the defect if it existed. He also said that in all his inspections he did not detect any irregularity in the steps. Thus a question of credibility arose between him and Mrs. King, the latter having testified, as already stated, that the defect had existed for a year or more. The jury believed Mrs. King. The defendant having entered, with Mrs. King, into the contested arena of credibility, has no legal basis upon which to claim that he was not fairly worsted when the jury chose to accept her testimony in preference to his own.

However, apart from actual notice, the defendant would be chargeable with constructive notice if the defective condition existed for such a period of time that in the normal course of events the condition would have to come to his attention. Whether there was constructive notice or not would also be a question for the jury.

In Coxey v. Guala, 112 Pa. Superior Ct. 460, 465, the plaintiff was injured because of a loose pad on steps in the defendant's premises. The Superior Court said: "This ...


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