Appeal from order of Court of Common Pleas of Westmoreland County, Jan. T., 1968, No. 406, in case of Twila E. Naponic and Michael Naponic v. Carlton Motel, Inc.
Joseph A. Hudock, with him Avra N. Pershing, Jr., and Pershing, Hudock & Leslie, for appellant.
A. C. Scales, with him Henry E. Shaw, and Scales and Shaw, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent). Opinion by Watkins, J. Montgomery, J., dissents and would grant a new trial.
[ 221 Pa. Super. Page 288]
This is an appeal from the judgment of the Court of Common Pleas, Westmoreland County, entered on the verdict in favor of the plaintiff-appellees, Twila E. Naponic and Michael Naponic, her husband, and against Carlton Motel, Inc., a corporation, the defendant-appellant, in a trespass action; and from the denial of post-trial motions for a new trial and judgment n.o.v.
The appellee-wife worked in a restaurant located on the second floor of the Carlton Motel. The only means of access to the restaurant was an outside flight of stairs consisting of fourteen uncovered, metal steps. An iron handrail extended along both sides of the steps. The top of the steps was about six feet from the restaurant and the bottom step led to the motel parking lot. The steps were used by patrons of the motel in going to the second floor level of the motel;
[ 221 Pa. Super. Page 289]
and to the bar and restaurant. They were also used by motel employees and by persons making deliveries.
The appellee went to work at 7 A.M. on May 9, 1966. At that time the steps were covered with snow. The parking lot was wet, slushy and muddy. It had chips on it but was not paved. She went up on the right-hand side of the steps holding onto the rail. It continued to snow and rain during the day and mud and dirt had been tracked onto the steps.
The accident occurred when she was descending the steps on her way home from work at 2:45 P.M. The step on which she fell was about the fifth down. It was bent, twisted and warped so as to cause water to collect on the tread and cover the whole surface. The tread was worn smooth as glass.
The steps were not cleaned between 7 A.M. and 2:45 P.M. and one of the owners of the motel had gone down the steps a short time before the appellee.
The appellant claimed that there was a conflict in the appellee's testimony compared to what was contained in her deposition concerning mud on the stairs. The appellant contends that she stated in her testimony when cross-examined about the deposition that her testimony concerning mud was mere conjecture. The record does not support this. In her deposition, she said something had been spilled on the step, "some kind of detergent or something was on the step there". She was not asked about mud, but then testified at the trial that mud was ...