Appeals from order of Court of Common Pleas of Allegheny County, July T., 1960, No. 1647, and Oct. T., 1961, No. 3326, in cases of Thomas A. McKown, Jr. v. Demmler Properties, Inc., and Hende-Jon Furniture Showrooms, Inc.; and Same v. John Schurko.
William C. Walker, with him Dickie, McCamey & Chilcote, for appellant.
Paul E. Moses, with him Robert B. Ivory, and Evans, Ivory & Evans, for appellee.
Bell, C. J., Musmanno, Jones, Eagen and O'Brien, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Eagen concurs in the result. Mr. Justice Jones dissents.
Thomas A. McKown, Jr., the plaintiff in this case, was injured when he walked into a building at 100 Ross Street in Pittsburgh, owned by Demmler Properties, Inc., the defendant, and fell. He brought suit in trespass against Demmler*fn* and recovered a verdict of $15,000. He moved for a new trial on the basis that the verdict was inadequate. The defendant moved for judgment n.o.v. The trial court ordered a new trial and refused judgment n.o.v. The defendant appealed.
The plaintiff McKown was a painting estimator employed by a Neiser Company which had done some work for John Schurko, president of the Hende-Jon Furniture Showrooms, Inc., which was negotiating with Demmler, owner of the building on 100 Ross Street, to lease the building and possibly later purchase it. Having ascertained from the telephone book that Schurko had offices in the Demmler Building (we will so refer to it), he went there on October 1, 1959, to talk with Schurko. He entered through a door on Ross Street and noted that he was in a loading area with a loading platform to the rear. The area was partially lit up by
an electric bulb and by light coming through a window and fire doors. The lower court describes in the following language what happened: "While the lighting furnished by the above sources prevented the area from being in pitch darkness, the light was dim and because of shadows, misleading or deceptive. After allowing his eyes to adjust to the dimness of the loading area, plaintiff proceeded toward the window, bearing somewhat to his right. He was watching the floor where he was going and he thought he could see but was deceived. After proceeding some six feet, he fell off the edge of the offset. Plaintiff had never been in the building before. He knew that the platform narrowed somewhere ahead and, quite properly, was looking for the offset when the accident occurred. He testified that conditions were such that: 'I thought I could see where I was going but I couldn't'."
It is the contention of the defendant that the plaintiff was a trespasser or, at best, a gratuitous licensee and as such the defendant violated no duty owing to him. It points out that Schurko did not in fact have an office in the building. (He was to move in later although McKown did not know this.) But this cannot make McKown a trespasser if he had every reason to believe Schurko actually was in the building. There would be no occasion for McKown to conclude that the telephone company and Schurko, together with Demmler, were in conspiracy to deceive him as to the whereabouts of Schurko.
McKown was not a trespasser. He was legitimately on the premises, not only for the purpose of seeing Schurko but also to look over the building itself since he intended to solicit work in connection with the remodeling of the building by Hende-Jon Furniture Showrooms, Inc. As a business visitor McKown had the right to expect that he would not be injured as a result of affirmative negligence on the part of the defendant.
The defendant knew of latent defects in the Demmler Building but made no effort to warn lawful visitors of what to expect. In that failure it was liable for injuries resulting from ...