Appeal, No. 278, Oct. T., 1961, from judgment of Court of Common Pleas of Delaware County, March T., 1959, No. 2612, in case of Marcella Nelson et vir v. Frank Facciola, Trustee. Judgment affirmed.
Jack Brian, with him Berman, Richard & Brian, for appellants.
John R. Graham, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 197 Pa. Super. Page 503]
This was an action in trespass in which the wife-plaintiff, Marcella Nelson, and her husband, Carl V. Nelson, sued the defendant, Frank Facciolo, Trustee, to recover for injuries which she received when descending outside steps from her apartment in the defendant's building. The wife-plaintiff fell because the heel of her shoe became wedged in a one-eighth to one-quarter of an inch slot between the wooden stair treads of the steps. Each step in the stairway was constructed of two boards or treads laid side by side with a space between them one-eighth to one-quarter of an inch in width. The wife-plaintiff was wearing a pair of shoes with three-inch high steel spike heels which
[ 197 Pa. Super. Page 504]
measured one-eighth of an inch wide at the bottom. The steps were seven in number and had a metal railing along the outer edge of the steps, the inner edge being adjacent to the building. Over the door on the building side at the top of the steps there was an electric light with a 25 watt bulb, which was lit at the time. The accident occurred on February 19, 1959 at about 8:00 p.m. on a clear night.
The plaintiff in her testimony stated that she could see all the way down the seven steps and she admitted that she did not use the handrail. Her excuse for not using the handrail was that a bush planted beside the steps hung over the railing and prevented the use of the same. The steps had not changed in condition from when they were built down to the time of the accident. The plaintiff admitted that she used the steps several times a day and at night during the year prior to the accident and she also admitted that she was aware of the construction of the steps. She also admitted that she did not carefully feel each step as she walked down nor did she calculate where to put her heels with respect to the known crack. She also admitted that she was aware that her spike heels could catch in the crack. She stated that the light on the steps was dim but admitted that she did not need a flashlight. The plaintiff's Exhibit No. 1, a photograph which was taken on March 17, 1959, nearly a month after the accident, showing the condition of the steps, was admitted into evidence. This photograph was taken from such an angle that it cannot be determined whether or not the bush overhung the rail. Defendant's Exhibit "A" was a photograph showing the steps an it also was admitted into evidence. It was taken at a time when the bush was in the same condition as it was at the time of the accident. This photograph was taken from a position directly in front of the steps and does not show the bush overhanging the rail.
[ 197 Pa. Super. Page 505]
A verdict was rendered for the defendant and the wife and her husband filed separate appeals. The husband's appeal was subsequently discontinued.
The attorney for the appellant first complains as to the admission of the testimony of Virginia Weed because her first knowledge of the scene came to her about a month after the date of the accident. It is true that where the condition is not shown to be static, testimony as to physical condition is limited to what existed at or about the time of the accident: Robinson v. Brown, 195 Pa. Superior Ct. 384, 171 A.2d 865. It is also true that where there is no change in the condition of the premises or the scene of the accident, evidence as to the condition of such place either before or after the event is relevant and admissible to show its condition at the time of such event: Schaff v. Meltzer, 382 Pa. 43, 114 A.2d 167. It was admitted that the physical condition of the steps had not changed from the time of the original construction to the time of trial except that sometime after the accident the bush near the handrail had been pruned. In fact, plaintiff's own photograph, Exhibit No. 1, taken March 17, 1959, about a month after the accident, clearly shows that the bush was there just as it had been on February 19, 1959 when the accident occurred. Viginia Weed began using these steps in March before appellant's pictures were taken. The wife appellant testified that the steps had been in the same condition during the whole year that she lived in the apartment. She did not move out of the apartment until about a month after the accident. Counsel for the appellant himself ...