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PUSKARICH v. TRUSTEES ZEMBO TEMPLE. (10/10/63)

October 10, 1963

PUSKARICH, APPELLANT,
v.
TRUSTEES OF ZEMBO TEMPLE.



Appeal, No. 40, May T., 1963, from judgment of Court of Common Pleas of Dauphin County, Sept. T., 1960, No. 1884, in case of Tony Puskarich v. Trustees of Zembo Temple of the Ancient Arabic Order of the Nobles of the Mystic Shrine. Judgment affirmed.

COUNSEL

John H. Bream, for appellant.

Huette F. Dowling, with him Dowling and Dowling, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: O'brien

[ 412 Pa. Page 314]

OPINION BY MR. JUSTICE O'BRIEN

On the evening of January 20, 1959, at approximately 11:15 p.m., Tony Puskarich, when leaving Zembo Temple, after attending a public function, fell and was seriously injured. He was walking on a sidewalk on the grounds surrounding Zembo Temple. He was in route to an automobile in the Zembo Temple parking lot. He alleges in his complaint that he proceeded down a flight of four steps and stepped on a slippery spot of ice, undulating and uneven in texture, with ridges and holes, sloppy with water and covering an irregular crumbling and broken portion of the sidewalk beneath.

The trial judge, at the conclusion of plaintiff's case on liability, entered a judgment of compulsory non-suit. Plaintiff's motion to take off the non-suit was denied by the court en banc and plaintiff appeals.

The action of the court: (1) in excluding certain photographs offered by the plaintiff; (2) in permitting defendant's counsel to quote from a deposition to attack

[ 412 Pa. Page 315]

    the credibility of plaintiff's witness; (3) in refusing to permit any testimony from the wife of the plaintiff; (4) refusing to permit defendant's maintenance superintendent to be called as on cross-examination and (5) entering a compulsory non-suit are assigned by appellant as error.

In considering this appeal from the judgment of compulsory non-suit, we read the record in the light most favorable to the plaintiff, Davies v. McDowell National Bank, 407 Pa. 209, 180 A.2d 21 (1962). So reading, we find that during the day and the evening of January 20, there was freezing rain, sleet and snow. The two days previous, there was freezing weather and no precipitation. The plaintiff was preceded by two friends with whom he was in company and there were many people walking on the sidewalk ahead of them. A friend of the plaintiff, Mr. Tarr, testified: "Well, I couldn't say whether I had taken three or four or five steps, but it was a very short time after we had reached the bottom of the steps there that you could feel with your feet that there was some sort of ice or something on it. We sort of slowed up." He then turned and saw the plaintiff fall. Continuing to describe the condition, Mr. Tarr said: "Well, it felt when we got to the bottom of the steps, you could feel that in that first few feet from the steps that there were - seemed to be ridges and like holes which were very sloppy - they were holding water. I also noticed that when I knelt down beside Mr. Puskarich after he fell." Mr. Carnicelli, a friend called as a witness, testified: "It was rough, it was icy, and the footing ...


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