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DE GREGORIS v. STOCKWELL RUBBER COMPANY (06/24/75)

decided: June 24, 1975.

DE GREGORIS, APPELLANT,
v.
STOCKWELL RUBBER COMPANY, INC., ET AL.



Appeals from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1969, No. 6799, and Feb. T., 1970, No. 4955, in cases of Armand De Gregoris v. Stockwell Rubber Company, Inc., and Armand De Gregoris v. Lombardi Company and Stockwell Rubber Company, Inc.

COUNSEL

Benjamin Kuby, with him Alan M. Tepper, and Klovsky, Kuby & Harris, for appellant.

Norbert F. Bergholtz, with him F. Hastings Griffin, Jr., and Dechert, Price & Rhoads, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.

Author: Cercone

[ 235 Pa. Super. Page 72]

Appellant, Armand De Gregoris, brought an action in trespass against the defendant-appellee, Stockwell Rubber Company, Inc. (Stockwell), for personal injuries sustained by appellant as a result of a fall on Stockwell's parking lot in Philadelphia. This matter was tried before a jury from September 13 to September 17, 1973. Following approximately eight hours of deliberation, the jury reported that they were unable to reach a verdict, and were therefore dismissed. Defendant Stockwell then

[ 235 Pa. Super. Page 73]

    moved for judgment on the whole record pursuant to the Act of April 20, 1911, P.L. 70, as amended June 3, 1971, P.L. 118, No. 6, § 1, 12 P.S. § 684. From the lower court's order granting Stockwell's motion, the instant appeal followed.

It is well established that: "Judgment can be entered for the defendant on the whole record only if the evidence, viewed in the light most advantageous to the plaintiff, resolving all conflicts therein in his favor, and giving him the benefit of every fact and inference pertaining to the issues involved which may be reasonably deduced therefrom, would not justify a verdict and judgment in his favor." Johnson v. Dew, 204 Pa. Superior Ct. 526, 528 (1964); Kuminkoski v. Daum, 429 Pa. 494 (1968).

The record reviewed in light of the foregoing principles reveals the following facts:

Stockwell operates a business located between Day and Shackamaxon Streets in Philadelphia. Immediately adjacent to the business is a customer parking lot owned by Stockwell. Since at least 1965, the Day Street side of the parking lot has been separated from the sidewalk by a series of iron pipes embedded in the ground. A steel cable 3/8ths of an inch in diameter was strung between these pipes at an approximate height of 19 inches from the ground.

On May 1, 1968, at approximately 11:30 A.M. on a bright, sunny day, plaintiff, Mr. De Gregoris, having parked his car in Stockwell's parking lot and upon returning to his car after making a purchase fell over the cable. Plaintiff conceded that when he parked his car he observed the line of pipes, but did not see the cable despite the fact that his car was parked one car width away from the pipes and the parking space next to the pipes was vacant. Plaintiff testified that as he walked along Day Street, on the way back to his car and immediately prior to turning into the parking lot, he looked straight ahead and that the cable was not in his vision.

[ 235 Pa. Super. Page 74]

Plaintiff further testified that there was no physical condition or obstruction which prevented him from seeing the cable, rather, plaintiff stated, "It just wasn't visible." Indeed, there was testimony indicating that the dark colored cable may have blended in with the black macadam surface of the parking lot. There was also testimony which suggested that the cable may have been obscured by shadows.

The singular issue presented by this appeal is whether the court below committed error in concluding that the appellant was contributorily negligent as a matter of law. It is fundamental that "contributory negligence as a matter of law should be declared only in a very clear case and only where the evidence of such is so clear and palpable that there is no room for fair and sensible men to differ in their conclusion as to its existence." Dougherty v. Philadelphia Nat'l Bank, 408 Pa. 342, 344 (1962); Accord: Kresovich v. Fitzsimmons, 439 Pa. 10 (1970); Niemiec v. Allegheny Co. Port Auth., 223 Pa. Superior Ct. 435 (1973).

Stockwell argues that appellant's conduct falls within the well recognized principle that: "'One who fails to observe a dangerous condition plainly visible and nevertheless proceeds without regard to his own safety must be held guilty of contributory negligence as a matter of law,' Miller v. Exeter Borough, 366 Pa. 336, 77 A.2d 395 (1951). It follows that one who sees such a defect and continues on is likewise contributorily negligent." Knapp v. Bradford City, 432 Pa. 172, 174 (1968). Accord: Kresovich v. Fitzsimmons, supra; Cerino v. Philadelphia, 435 Pa. 355 (1969). Appellant acknowledges the validity of the above principle, but contends that it is inapplicable because the suspended cable, ...


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