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ROBINSON v. ALSTON (01/08/64)

January 8, 1964

ROBINSON
v.
ALSTON, APPELLANT.



Appeal, No. 287, Jan. T., 1963, from judgment of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1957, No. 2725, in case of Henry A. Robinson v. Estelle Alston. Judgment affirmed; reargument refused February 13, 1964.

COUNSEL

Ransome A. Kley, for appellant.

Edward I. Weisberg, with him Davis N. Feldman, for appellee.

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

Author: Musmanno

[ 413 Pa. Page 297]

OPINION BY MR. JUSTICE MUSMANNO

Henry A. Robinson, some 40 years of age, the plaintiff in this case, entered an apartment house, owned by Estelle Alston, the defendant, and while in the process of leaving, fell down some steps, incurring injuries. He brought an action of trespass against the owner of the property. At the termination of the plaintiff's case the defendant moved for a non-suit which was refused, the case having been heard non-jury by Judge VICTOR BLANC of the Court of Common Pleas No. 6 of Philadelphia County, who entered a verdict in the sum of $6,999 in favor of the plaintiff. The defendant moved for judgment n.o.v., which motion was refused and she has appealed to this court.

The appellant argues that the plaintiff failed to make out a case of negligence and at the same time convicted himself of contributory negligence. The plaintiff testified that as he was descending the stairway from the third floor, a nail protruding from the second tread caught his heel, causing him to fall. He said that the hallway was "kind of dim-looking," undoubtedly meaning dimly lighted. The tenant, Miss Hazel Hunter, whom he had visited, testified that the hallway "wasn't too dark to walk and it wasn't too light." She said that she had lived in the apartment house for nine months prior to the accident and had informed the landlady of the dangerous condition of

[ 413 Pa. Page 298]

    the steps. When asked what it was which caused the plaintiff to fall she replied: "Well, the nail was coming out, it was coming up on the - the shiny piece was kind of sticking up some ... Either the rubber mat or a nail, or this aluminum edge on it."

The defendant testified that the steps were in excellent condition and denied that she had ever been notified by Miss Hunter to the contrary. The issue in the case was strictly one of fact, and the disposition of the appeal does not require a long opinion. Defendant's counsel, in his brief, argues the facts at great length, expatiating considerably on the question of the credibility of the witnesses, but there is nothing in the record which would establish that the trial judge abused his discretion in reaching the conclusions which he specified in his opinion.

At one point in his brief, defendant's counsel states that the plaintiff "could not read good and spells badly." What could be the possible relevancy of this statement? Certainly it does not require a college education to fall down steps which are dimly lighted and therefore do not reveal the lurking nail which catches a visitor's shoe and trips him.

The plaintiff fell on April 28, 1957, but the defendant was not informed of the accident until September 27, 1957.The defendant sees in this failure to be notified a fatal impediment in the plaintiff's case. Her counsel characterizes the plaintiff's failure to inform the defendant of his injury on her property a "withholding of evidence", or even a "destruction of evidence," stating that "Every inference will be indulged against a party who destroys papers material to the case. Every presumption will be adopted against a litigant who suppresses evidence that ...


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