November 10, 1964
V.F.W. CLUB NO. 2145, INC.
Appeal, No. 231, March T., 1964, from judgment of Court of Common Pleas of Clarion County, Nov. T., 1962, No. 169, in case of Thomas W. Hosack v. V.F.W. Club No. 2145, Inc. Judgment reversed.
H. Ray Pope, Jr., for appellant.
Chester H. Byerly, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
[ 415 Pa. Page 548]
OPINION BY MR. JUSTICE MUSMANNO
In Polm v. Hession, 363 Pa. 494, 496, this Court said, quoting from Dively v. Penn-Pittsburgh Corporation, 332 Pa. 65, that there are cases where "there is some fairly compelling reason for walking in a place which, though dark, is not utterly devoid of light. Under such circumstances, contributory negligence will not be declared as a matter of law."
[ 415 Pa. Page 549]
In the case at bar, the plaintiff moved from the club, where he had spent the evening, to the place where his car was parked, over a route which was dark. The darkness, however, was not so complete and not so enveloping that he advanced as a blind man. There was evidence that there were lights in the area which shed some partial illumination over his course of travel. Whether that illumination was adequate to guide him under the particular circumstances was a question of fact for the jury. The court below decided the issue as one of black and white and nonsuited the plaintiff on the basis that he was guilty of contributory negligence as a matter of law. The record would establish that there were some gradations of gray in the picture. Under the circumstances portrayed by the record it thus became a question for the jury to determine whether the plaintiff was injured because of an improvident and unthinking advance into the unknown or whether he moved as a reasonably cautious man and fell to his injury as a result of negligence on the part of the defendant in the maintenance of its premises.
Mr. Justice ROBERTS dissents.
Judgment reversed with a venire facias de novo.
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