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AMELIA MCNALLY AND DANIEL MCNALLY v. CARL LIEBOWITZ (01/18/80)

filed: January 18, 1980.

AMELIA MCNALLY AND DANIEL MCNALLY, HER HUSBAND, AND DANIEL MCNALLY, IN HIS OWN RIGHT, APPELLANTS,
v.
CARL LIEBOWITZ, INDIVIDUALLY AND TRADING AS SANDWICHLAND



No. 247 October Term, 1979, Appeal from the Order in the Court of Common Pleas of Delaware County, Civil Action No. 77-1239 in Trespass.

COUNSEL

James J. Rahner, Broomall, for appellants.

Bernard P. Carey, Jr., Upper Darby, for appellee.

Price, Wieand and Van der Voort, JJ.*fn* Wieand, J., files a dissenting statement.

Author: Price

[ 274 Pa. Super. Page 388]

Trial commenced before a jury on May 25, 1978, and was concluded after the presentation of plaintiffs' case when the trial judge entered a compulsory non-suit because the evidence showed that plaintiff, Amelia McNally, was contributorily negligent as a matter of law. Motions to set aside the non-suit and for grant of a new trial were denied, and this appeal followed. We affirm the order of the court of common pleas.

A compulsory non-suit may be entered when the plaintiff's evidence, viewed in the light most favorable to him, either fails to show that the defendant was negligent, or affirmatively shows the plaintiff's contributory negligence. Ellis v. Drab, 373 Pa. 189, 94 A.2d 189 (1953). Thus, in our review, appellants must be accorded the benefit of all conflicts in testimony and all reasonable inferences deducible therefrom. Hinton v. Waste Techniques Corp., 243 Pa. Super. 189, 364 A.2d 724 (1976); Frangis v. Duquesne Light Co., 232 Pa. Super. 420, 335 A.2d 796 (1975).

Viewed in this way, the facts developed at trial are these. On November 1, 1975, Amelia and Daniel McNally entered the Sandwichland restaurant. While Daniel McNally ordered, Amelia proceeded to the restroom to wash her hands. She advanced through a door over which a sign indicated "restrooms," into an area in which she could see absolutely nothing, (N.T. 29), turned to the right, and began to feel around for a light switch. While searching for it, she fell down a stairway and was injured. Appellants argue that these facts do not establish contributory negligence as a matter of law. We disagree.

[ 274 Pa. Super. Page 389]

Although it is true that these "darkness" cases necessarily depend largely on individual facts, Dively v. Penn-Pittsburgh Corp., 332 Pa. 65, 2 A.2d 831 (1938), this area of the law has been well developed and some general rules have evolved. Thus, in the absence of compelling necessity, it is generally held "'that one who follows an unfamiliar course in the dark or steps into darkened and unfamiliar space, relying upon his sense of touch instead of obtaining and using adequate lighting facilities, and sustains personal injuries, is guilty of contributory negligence as a matter of law.'" Just v. Sons of Italy Hall, 240 Pa. Super. 416, 422, 368 A.2d 308, 312 (1976) (emphasis in original), quoting Barth v. Klinck, 360 Pa. 616, 618, 62 A.2d 841, 842 (1949). "[D]arkness is, in itself, a warning to proceed either with extreme caution or not at all." Barth v. Klinck, supra, 360 Pa. at 618, 62 A.2d at 842; Mogren v. Gadonas, 358 Pa. 507, 511, 58 A.2d 150, 152 (1948). The controlling factors in determining the question whether one was contributorily negligent in proceeding in the darkness are the degree of darkness and the justification for the injured person's presence in the place of danger. Dively v. Penn-Pittsburgh Corp., supra; Just v. Sons of Italy Hall, supra.

The degree of darkness is important in determining if appellant had reason to apprehend the danger. If the area was not totally dark, she may have been reasonably justified in assuming that with appropriate care she could reach the end destination without mishap. In all cases one must use the senses that are available, Bartek v. Grossman, 356 Pa. 522, 52 A.2d 209 (1947), and it is only when a plaintiff uses his sense of sight carefully and reasonably believes that he can "see his way", but was then deceived by shadows, that the question of his negligence will be for the jury. McKown v. Demmler Properties, Inc., 419 Pa. 475, 214 A.2d 626 (1965); Carns v. Noel, 364 Pa. 77, 70 A.2d 619 (1950); Falen v. Monessen Amusement Co., 363 Pa. 168, 69 A.2d 65 (1949).

In the present case, the testimony repeatedly shows that appellant was not deceived by her senses; she did not rely on them at all. By ...


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