Appeal from judgment of Court of Common Pleas of Northampton County, Jan. T., 1966, No. 3, in case of John Vanic et ux. v. Anthony D. Ragni et ux.
Philip J. Gahagan, for appellants.
Preston W. Moritz, with him E. Jerome Brose, and Brose, Poswistilo & LaBarr, for appellees.
Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice pomeroy. Mr. Justice Roberts concurs in the result. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
This is an appeal from the judgment of the Court of Common Pleas of Northampton County entered on a jury verdict for the defendants, Anthony D. Ragni and his wife, Madelaine P. Ragni, in a trespass action brought by plaintiffs after Concelia Vanic had suffered a fall on defendants' property. The court below denied plaintiffs' motion for a new trial, and plaintiffs appealed to this Court.
The defendants owned a three-story building located at 302-304 East Third Street, Bethlehem, Pennsylvania. Mr. Ragni operated a barber shop on the first floor, and the upper two floors were rented as apartments. A paved area at the rear of the building was used as a parking lot by Mr. Ragni, his tenants, and others who rented space.
Mrs. Vanic, who rented space in the lot, arrived about 6:30 A.M. on Tuesday, January 12, 1965, and parked her car near a corner of Mr. Ragni's building. As she was alighting from her car, Mrs. Vanic slipped on a patch of ice and fell, striking her back and side on the pavement. There were no eyewitnesses to the accident, and testimony as to the amount of illumination which could have existed at the time of the accident on the parking lot was conflicting. Allegedly as a result of this fall, Mrs. Vanic sustained a lumbosacral sprain, which at the time of the trial two years later had not been cured, notwithstanding extensive treatments.
The gutter downspout normally positioned at the corner of the Ragni building had previously been removed during the course of repairs made to the building, and water from the gutter thus dripped onto the pavement in that area of the parking lot. Evidence showed that Mr. Ragni was aware that the downspout was missing. Three days before the accident there had been a snowfall, and Mr. Ragni had the parking lot
cleared of snow that day. The following day Mr. Ragni noticed an accumulation of ice on the pavement at the corner of the building. Mr. Ragni testified that on the Sunday and Monday immediately preceding the accident he had salted and scraped the ice that had formed in that area. On essentially this evidence, the jury returned a verdict for the defendants. Plaintiffs urge that prejudicial errors by the trial judge require the grant of a new trial. We disagree and affirm the denial of the new trial motion.
First, at the trial, the defendants introduced four photographs of the parking lot. The first of these was a close-up view of the corner of the building and the area of the parking lot in which Mrs. Vanic had slipped. The others were general views of the rear of the building and the parking lot. Three photographs -- one close-up and two general views -- were received into evidence without objection from plaintiffs' counsel; the third general view was received over his objection.
The objection voiced at trial was that this fourth photograph was a posed photograph. On appeal, appellants raise the additional points that the photograph was taken during daytime, at a time when no snow or ice conditions existed, and after the missing downspout had been replaced and parking spaces marked off with lines. In addition, the several cars shown parked on the lot in the photograph had not been present at the time of ...