Appeal from Order of the Court of Common Pleas, Civil Division, of Adams County, No. 83-S-669.
Timothy I. Mark, Harrisburg, for appellant.
E. Franklin Martin, Waynesboro, for appellees.
Wieand, Olszewski and Tamilia, JJ.
[ 363 Pa. Super. Page 529]
In this action to recover damages for personal injuries sustained in a fall from a stage, the jury returned a verdict in favor of the defendant-owner of the premises. There-after, the trial court ordered a new trial unless the defendant agreed to pay the plaintiff one-half of the settlement figure which had been offered prior to trial. Because we find that the trial court abused its discretion, we reverse.
On April 17, 1982, Mary J. Arcidiacono, the appellee, was injured when she fell from a stage while attending a meeting on defendant's premises. She, along with her husband, commenced an action in trespass alleging that appellant's
[ 363 Pa. Super. Page 530]
negligence had caused her fall. The evidence produced at trial showed that the stage from which appellee had fallen was a temporary structure which was eight feet in width, twenty-eight feet in length and sixteen inches in height. The stage had been placed between two pilasters in such a manner as to leave a space of about one foot between the rear edge of the stage and the wall which ran between the pilasters. A curtain had been hung about six inches from the rear edge of the stage, between the edge of the stage and the wall. Thus, a space existed between the end of the stage and the curtain, and also between the curtain and the wall. The defendant-owner's witness testified that the gap between the edge of the stage and the curtain had been visible; and, in fact, photographs introduced into evidence at trial confirmed this testimony. The evidence showed, however, that the second gap, between the curtain and the wall, had not been visible.
Appellee, according to her own testimony, knew that she was walking near the edge of the stage and was aware of the fact that the curtain was located a short distance away from the edge of the stage. She stated that as she moved to step around the person who had been standing next to her, she fell between the stage and the wall. She testified that she had no idea of what had caused her to fall and that, although the lights had been dim, she had had no difficulty seeing where she was walking.
After hearing the evidence, the jury returned a verdict for the defendant-owner, finding that although it had been negligent, its negligence had not been a substantial factor in bringing about appellee's injury. Appellee filed a timely motion for a new trial alleging that the verdict was against the weight of the evidence.*fn1 The trial court entered an
[ 363 Pa. Super. Page 531]
order granting the motion unless, within twenty days, the defendant offered to pay appellee one-half of the settlement figure which it had offered before ...