Appeal from judgment of Court of Common Pleas of Delaware County, of 1966, No. 8525, in case of Sylvester A. Matteo v. Sharon Hill Lanes, Inc.
Robert B. Surrick, with him Cramp & D'Iorio, for appellant.
Fred Lowenschuss, for appellee.
Wright, P. J., Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. (Watkins, J., absent). Opinion by Jacobs, J.
[ 216 Pa. Super. Page 189]
In this negligence action the jury returned a verdict of $5000 for the plaintiff. Defendant's motions for judgment n.o.v. and for a new trial were refused and defendant appeals. We will grant a new trial.
Plaintiff was injured while bowling on defendant's lanes. He fell because of a wet spot on his shoe which prevented him from sliding as he threw the ball toward the pins. In the course of his own testimony the plaintiff admitted that he did not inspect his shoes prior to bowling the frame in which he fell. He also stated that he knew coffee and sandwiches were being consumed in the area and that any wet substance would cause him not to slide.
At the end of the court's charge the defendant took an exception to the charge on contributory negligence on the ground that the judge nowhere stated that the
[ 216 Pa. Super. Page 190]
plaintiff may not recover if he shows contributory negligence in his own case. No such charge was given and in this case it was error not to so charge.
In his charge, after defining contributory negligence, the judge said:
"Any plaintiff who is guilty of contributory negligence cannot recover under the law of this state, no matter how negligent the defendant may have been. If a plaintiff was guilty of negligence which contributed to the happening of his own injury in any degree, however slight it may have been, he cannot prevail in a suit for damages arising from that accident.
"The test is whether the act or acts alleged as constituting negligence contributed in any degree to the production of the injury. The defendant contends not only that he was not negligent himself but that the plaintiff was guilty of negligence which contributed to the happening of the accident. If the defendant is correct in either of these contentions, the plaintiff may not recover. However, contributory negligence is a defense which the ...