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submitted: March 19, 1979.


No. 985 October Term 1978, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Action -- Law, No. 75-9209.


Charles Kovler, Philadelphia, for appellant.

Frederick W. McBrien, III, Norristown, for appellee.

Price, Spaeth and Lipez, JJ. Price, J., dissents.

Author: Lipez

[ 274 Pa. Super. Page 76]

James Landy here appeals the trial court's refusal to strike or remove the non-suit it ordered at the close of plaintiff's evidence. We reverse and remand for new trial.

At the time of the incident at issue, Landy was an employee of a tenant of appellee Romeo's commercial building. On the morning of October 17, 1974, Landy left the building and walked towards the street, across the sidewalk abutting the side of the building from which he had exited. A space approximately fourteen inches wide between the sidewalk and the curb had been filled in with asphalt, which had sunk to a level about two inches below that of the top of the curb. The area in Landy's path was covered to some

[ 274 Pa. Super. Page 77]

    extent by an accumulation of leaves from a nearby tree. Landy tripped over the curb and fell into the street, sustaining injury. He brought suit against Romeo as owner of the building, alleging that Romeo's negligence had led to his injuries. The trial court granted Romeo's motion for non-suit, concluding, as a matter of law, that Landy, although "entirely familiar with the conditions [had], nevertheless, tested a known danger" and thus had been contributorily negligent.

On appeal from the entry of a compulsory non-suit, an appellate court must "accept as true the facts presented by appellant, read the evidence in the light most favorable to the appellant and give the appellant the benefit of all reasonable inferences and deductions arising from such evidence." Norton v. City of Easton, 249 Pa. Super. 520, 523, 378 A.2d 417, 419 (1977). A compulsory non-suit is proper "only in a clear case where the facts and circumstances lead unerringly to but one conclusion." Paul v. Hess Brothers, Inc., 226 Pa. Super. 92, 94, 312 A.2d 65, 66 (1973). Where the trial court has found contributory negligence as a matter of law, that negligence must be "so clearly revealed that there is no room for reasonable disagreement as to its existence." Lavely v. Wolota, 253 Pa. Super. 196, 202, 384 A.2d 1298, 1302 (1978). If there is room for fair and reasonable minds to differ in their conclusion regarding the plaintiff's conduct, the issue must be submitted to the jury. DeGregoris v. Stockwell Rubber Co., 235 Pa. Super. 71, 340 A.2d 570 (1975).

Weitz v. Baurkot, 267 Pa. Super. 471 at 473-474, 406 A.2d 1138 at 1139.

The record does not support the trial court's conclusion that Landy had tested a known danger. There is no evidence that Landy, at the time he fell, "remembered the danger and was actually looking for it." Jordan v. Pittsburgh, 332 Pa. 230, 232, 3 A.2d 677, 678 (1938). This distinguishes the instant matter from Jordan v. Pittsburgh, supra, q. v., relied upon by the court below.

[ 274 Pa. Super. Page 78]

    correct and injury result to him he is entitled to claim compensation. The present case furnishes a parallel to those where the sidewalks were entirely covered with snow and water. We held in the case of Clifford v. the City of Phila., [104 Pa. Super. 338, 159 A. 232 (1932)], that where the entire pavement was covered with water rendering danger invisible the plaintiff falling into a hole was not as a matter of law guilty of contributory negligence. All the above questions were for the jury.

114 Pa. Super. at 117, 174 A. at 669. In the case before us, it was clearly within the province of the jury to determine whether Landy was or should have been aware of the position of the curb in relation to the asphalt strip, considering in connection therewith Landy's explanation that the leaves obscured the sidewalk and thus prevented the possibility of accident coming to mind. See Hagen v. Standard Oil Co., 119 Pa. Super. 337, 181 A. 458 (1935).

The order of the court below is reversed, and a new trial ordered.


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