Appeal from judgment of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1958, No. 808, in case of Henrietta Gaynor et al. v. John Nagob.
Walter Stein, for appellant.
Martin Heller, with him Maximillian J. Klinger, for appellees.
Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Flood, J. Wright, J., would enter judgment n.o.v. in favor of the appellant. Montgomery, J., would grant a new trial.
[ 204 Pa. Super. Page 260]
On December 2, 1956, the plaintiff fell down a flight of stairs in a house owned by the defendant. She had gone there to bring home her son after being informed that he was intoxicated "at Miss Rowbottom's house". She testified that the Rowbottoms lived on the second floor, she went to the house and up the stairs and found her son sitting in a room there. As they left, he preceded her down the stairs and, being unsteady, started to fall. In so doing, he grabbed the bannister for support, causing it to sway. The plaintiff, descending behind him and holding the bannister, lost her footing because of the motion of the railing and fell to the bottom of the stairs, sustaining the injuries for which she brought this suit. There was evidence that the bannister was shaky and had been tied with a rope to a clamp at the top of the stairs.
[ 204 Pa. Super. Page 261]
Following a jury verdict for the plaintiff, the court below refused to enter judgment n.o.v. The defendant now contends that (1) he was not negligent or, if he was, his negligence was not a proximate cause of the accident and (2) the plaintiff was contributorily negligent. The court below properly held these to be questions for the jury.
"It is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability. . . . The facts are for the jury in any case whether based upon direct or circumstantial evidence where a reasonable conclusion can be arrived at which would place liability on the defendant." Smith v. Bell Telephone Co. of Pa., 397 Pa. 134, 138, 153 A.2d 477, 480 (1959). Nor should contributory negligence be declared to exist as a matter of law unless it is so clearly revealed that reasonable individuals cannot disagree as to its existence. Greco v. 7-Up Bottling Co. of Pittsburgh, 401 Pa. 434, 165 A.2d 5 (1960).
Under the evidence, whether or not the defendant's failure to repair the stairway constituted negligence and, if so, whether that negligence was the proximate cause of the plaintiff's injury were questions for the jury. Her son's action in grabbing the bannister, even if it could be characterized as negligence, in no way insulates or supersedes the concurrent negligence of the defendant which the jury was justified in finding a proximate cause of injury. See Christman v. Segal, 143 Pa. Superior Ct. 87, 17 A.2d 676 (1941) and Restatement, Torts, § 439.
Similarly, whether or not the plaintiff was contributorily negligent in not waiting until her son reached the bottom of the stairs before she started down or in using this stairway rather than an alternative
[ 204 Pa. Super. Page 262]
route, if indeed one was available, were issues for ...