The opinion of the court was delivered by: ROSENBERG
Motions are now here for a new trial and to set aside the jury's verdicts and enter Judgment N.O.V. for the defendant. The action is in this court by reason of an accident which occurred on August 18, 1961 in which Dorothy Jean Ramsey, the wife-plaintiff was injured while emerging from the defendant's branch bank or office at Aliquippa, Pennsylvania. The accident took place on the early afternoon of that day. Mrs. Ramsey had been in the bank and had made a payment on a loan which was owed or due to the defendant bank. The wife-plaintiff was required to pass through two swinging doors which obstructed the defendant's main entrance-exit way in order to reach the street. Immediately outside the door's threshold and on the same level, which was a step higher than the walkway connecting the doorway and the public sidewalk in front of the bank, there existed a platform with a built-in depression for the purpose of receiving the mat. The mat fitted into the depression of the platform and presented the same level as the platform itself. The only difference was that the mat which was laid in this space contained many small holes. The mat, itself, was made up of rubber and fiber.
As the wife-plaintiff came through the swinging door and placed her foot on the outside as a first step, her heel coming down into the mat caught and caused her to fall onto the walkway connecting with the sidewalk. Her husband who had been across the street came over and helped her up, put the things which had fallen out of her purse back again, and helped her back into the bank where she reported to the manager what had happened. He in turn asked her if she wanted to see a doctor and stated that he was going to call Pittsburgh right away and 'have that mat changed as my own girls have complained of catching their heel in that mat'.
Both plaintiffs subsequently left the took care of some business elsewhere and then came back again because the wife-plaintiff 'was feeling awful bad'. Mr. Herbert, the manager then suggested that she go to a doctor and also suggested the hospital. The husband-plaintiff took her to the Aliquippa Hospital where she saw Dr. Owens and two days later went back to the emergency room and saw Dr. Owens again. She complained at that time that her back was hurting and that she also had hurt her knee, elbow and ankle. However, because her back continued to hurt, on August 23, 1961, she went to see Dr. Willison at Sewickley, Pennsylvania, which was near her home. He continued to treat her every other day until they left for Florida. In Florida, she consulted Dr. Harvey Weiner and he treated her while they remained in Florida. In March 1962, they came back to Pennsylvania where they intended or expected to stay a month or two with her sister, Mrs. Snyder, although they shortly moved into a house trailer for the temporary stay. While back in Pennsylvania, she went back to Dr. Willison who continued to treat her.
The jury awarded the wife-plaintiff $ 15,000 damages and the husband-plaintiff $ 10,000 damages. The defendant now complains that the verdicts should either be set aside and judgment rendered for the defendant, or that a new trial be granted.
Dorothy Jean Ramsey and Wayne A. Ramsey, wife and husband plaintiffs, based their action for damages upon the negligence of Mellon National Bank & Trust Company, the defendant, in failing to provide a mat with holes of sufficiently small diameter to accommodate the wife-plaintiff's shoes at the defendant bank's doorway, and because of the placement by the defendant of the mat in such proximity at the doors as to make in unsafe.
There are two phases to the defendant's contention: (a) that there are procedural errors as regards the substance of the action itself; and (b) that an improper burden was placed upon the defendant as regarded the diversity jurisdiction question which it had raised.
As to the first, the defendant contends that (a) there was no negligence on the part of the defendant which could support the verdicts; (b) the wife-plaintiff was chargeable with contributory negligence as a matter of law; and (c) that the verdicts are grossly excessive.
The defendant relies and the plaintiffs agree upon 'Restatement of the Law, Torts' § 343 as the law of Pennsylvania governing this case. This reads as follows:
'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 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 a warning adequate to enable them to avoid the harm * * *'.
The defendant cites a number of cases which do not help it. In Yearsley v. American Stores Co., 97 Pa.Super. 275 (1929), a woman plaintiff caught the heel of her shoe in a register grating. There, there was no evidence to prove that the construction of the grating either in the way it rested in the opening or the sizes and construction of its interstices were unusual or not in accord with the ordinary accustomed construction of such appliances.
The defendant also offers as authority Nelson v. Facciola, 197 Pa.Super. 502, 179 A.2d 258, 1962, on the Pennsylvania law as it should guide the instant case. That case is not at all in point. There a stairway, handrail and lighting were the background circumstances by which the wife-plaintiff fell while wearing shoes with three inch high heels only one-eighth inch wide at the bottom.
Another case offered by the defendant is Calligan v. Monongahela City, 272 Pa. 28, 115 A. 869, 1922. Because of a defect in a municipality's street, where the pavement consisted of an iron framework containing round pieces of glass and where for some unstated reason a number of pieces of glass had been removed leaving holes in the pavement, the plaintiff recovered a verdict and the Pennsylvania Supreme Court affirmed the jury's holding. But at page 30 of 272 Pa., at page 869 of 115 A., the opinion contains the following:
'Had the heel of plaintiff's shoe been unusually narrow, and, by reason thereof, it had caught in the hole and she had been injured, the court below could have given binding instructions for defendant, for a municipality is not obliged to anticipate ...