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FRANK VILLANO v. SECURITY SAVINGS ASSOCIATION (07/13/79)

decided: July 13, 1979.

FRANK VILLANO
v.
SECURITY SAVINGS ASSOCIATION, APPELLANT



No. 2002 October Term, 1978, Appeal from Judgment of the Court of Common Pleas, Civil Action--Law, of Luzerne County, at No. 7007 of 1974.

COUNSEL

Arthur Silverblatt, Wilkes-Barre, for appellant.

Joseph J. Ustynoski, Hazleton, for appellee.

Van der Voort, Hester and Wieand, JJ.

Author: Hester

[ 268 Pa. Super. Page 69]

Presently before the court is an appeal from the lower court's order under date of June 8, 1978 denying appellant's motion for judgment n. o. v. or for a new trial.

This was an action in trespass to recover damages for personal injuries sustained as a result of a fall which occurred on or about September 29, 1972 when appellee, a business visitor, tripped and fell while attempting to enter appellant's bank located on Broad Street, in the city of Hazleton, Pennsylvania.

The complaint in trespass was filed August 26, 1974. Said case was tried before a jury in March of 1977. At the close of appellee's testimony, appellant filed a written motion for a compulsory non-suit, which was denied. At the conclusion of appellant's case, appellant requested binding instructions which were similarly denied. Thereafter, the jury brought in a verdict in favor of the appellee and against the appellant in the sum of Twenty-five Thousand ($25,000.00) Dollars. Appellant filed its motions for judgment n. o. v. or a new trial, which motions were denied by order under date of June 8, 1978. It is from this order of the lower court that the instant appeal has been brought.

Appellant contends that the jury did not have sufficient evidence upon which to base a finding of negligence or, in the alternative, that appellee was contributorily negligent as a matter of law and therefore the court erred in failing to grant appellant's motion for a compulsory non-suit.

We agree that appellee was contributorily negligent as a matter of law; that the lower court erred in failing to grant appellant's motion for a compulsory non-suit, and therefore reverse the lower court's order under date of June 8, 1978 and direct that judgment n. o. v. be granted in favor of appellant and against appellee.

Considering the evidence together with all reasonable inferences flowing therefrom in a light most favorable to

[ 268 Pa. Super. Page 70]

    the verdict winner, the appellee; and resolving all conflicts in favor of the verdict winner, the appellee; we still must conclude that the evidence was insufficient to sustain the jury's verdict. Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973); Krescovich v. Fitzsimmons, 439 Pa. 10, 264 A.2d 585 (1970).

It is hornbook law in Pennsylvania that a person must look where he is going. In Lewis v. Duquesne Inclined Plane Co., 346 Pa. 43, 44, 28 A.2d 925, 926 (1942), it was stated:

". . . If there is anything settled in the law of negligence in Pennsylvania, it is the duty of a person to look where he is walking and see that which is obvious."

After a careful review of the record in this matter, we conclude that appellee was contributorily negligent as a matter of law. The law requires that a person exercise reasonable care and diligence in crossing the street, walking a sidewalk, or as in the instant case, entering a commercial establishment.

Here, appellee, a mortgage customer of appellant, who on the day of the accident, went to appellant's bank to make his monthly mortgage payment, approached the front entrance to the bank which consisted of two stone steps which led to the front doors of the bank building. The sidewalk at the bank's entrance is sloped so that there was a difference in the height of the first step from one end to the other of precisely three inches. Appellant's Exhibit No. 2 -- (R. 221a). At the time of the accident, appellee attempted to ascend the two stone steps. As he approached the bank building in a westerly direction, he was able to observe only the westerly end of the steps (the part of the steps farthest from him) because the easterly end of the stone steps, the end closest to him and the portion which he subsequently attempted to ascend, was blocked from his view by a bank pillar which ...


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