Summary
finding defendant had no notice of the conditions and plaintiff was contributorily negligent in negligence claim for slip and fall in wet, slushy revolving door of restaurant
Summary of this case from Sell v. Wellsboro Hotel Co.Opinion
November 13, 1950.
January 2, 1951.
Negligence — Possessor of land — Condition — Restaurant — Revolving door — Floor — Slush — Evidence — Contributory negligence.
In an action for personal injuries, in which it appeared that plaintiff mounted a single step and started to enter the revolving door of defendant's restaurant, which was moving very slowly, when she slipped and fell; that the streets outside were slushy as was the floor where she fell; and that there was no evidence as to how long the slushy condition of the entryway had existed or what measures defendant had taken or not taken to correct it, or as to the condition of the floor inside the restaurant; it was Held that (1) the evidence was insufficient as a matter of law to establish that defendant was negligent; and (2) the evidence established as a matter of law that plaintiff was contributorily negligent.
Before DREW, C. J., STEARNE, JONES, LADNER and CHIDSEY, JJ.
Appeal, No. 178, Jan. T., 1950, from order of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1947, No. 4582, in case of Hannah Sheridan v. Horn Hardart Baking Co. Order affirmed.
Trespass for personal injuries.
The facts are stated in the opinion by BOK, P. J., of the court below, as follows:
Mrs. Sheridan mounted a single step and started to enter the restaurant's revolving door, which was moving very slowly, when she slipped and fell. It was misting or raining very slightly and it had snowed the day before. She was carrying her umbrella unopened, as it was not raining hard enough to make her use it. She fell within the section of the revolving door that she had entered and was not within the restaurant proper at any time. She had just started to push the door to go through.
She said that the streets outside were slushy and that the floor where she fell was wet, slushy, dirty, and slippery. She noticed all this ahead of time, for she testified: "Q. As you entered the doorway you found the same condition that you found on the sidewalk, did you not? A. Yes, it was slushy, the floor was slushy, it had ice or something on the floor, wet, because I noticed it, yes. Q. When did you notice that? A. I noticed it when I stepped in. I always try to look where I am walking . . . . Q. As you stepped up on this step here . . . which you said was about 4 inches high you could see there was this slush and water in the entryway? A. As I put my foot up and stepped in I saw the floor was slushy, and I had my galoshes on. I am always prepared for wet weather like that . . . Q. . . . I think you said as you stepped up on the step you saw there was water and slush in the entryway? A. Yes. Q. You didn't look up, I see. A. I looked more down on the floor, I had put my hand on the door to walk in." (Emphasis added)
The floor was of smooth tile, and there was nothing on it but the slush and water.
There was no evidence, apart from the description of general weather conditions, how long the wet and slushy condition of the entryway had existed; no evidence that defendant had taken any measures or no measures to correct it and no evidence that there was a similar condition inside the restaurant. For all we know, an employee may have mopped it up two minutes before Mrs. Sheridan fell. In Flora v. A. P. Co., 330 Pa. 166 (1938), where recovery was allowed because there was evidence that defendant had a mopper on hand but that no mopping had been done for an hour and a half before plaintiff fell, the Court affirmed the idea that stores are not insurers and that some evidence of negligence beyond the mere happening of the accident is needed before the plaintiff can be considered to have met her conventional burden.
Plaintiff contends that the conditions themselves put defendant on notice — i.e. the smooth tile and the wet weather —, and cites Cestaric v. Greyhound Lines, 139 F.2d 566 (CCA, 3rd, 1943). The facts are different, for there was evidence of continuous rain and of rain water on the floor inside the terminal. Here there is nothing to show what the floor was like inside the entrance, and the weather was not falling sufficiently to require Mrs. Sheridan to use her umbrella.
Furthermore, she saw the conditions before she fell, and this makes her guilty of contributory negligence under Larson v. Snellenburg, 154 Pa. Super. 63 (1943). In Bilger v. A. P. Co., 316 Pa. 540 (1934), the rule is that a pedestrian has a higher degree of care on sidewalks than in stores: in the case before us the outside conditions existed in the entryway and within the sweep of the revolving door, and are properly within the rule of the cited case.
Mrs. Sheridan saw the condition, knew that it was slippery, and negotiated it anyway. It was broad daylight, she had no packages, and there was no unusually crowded condition to hamper her movements. Although the door was moving slowly, it was not sweeping her inward: she testified that she had just started to push the door to go through.
A smooth tile floor is not of itself a dangerous condition — a terrazzo step was held not to be in Copelan v. Stanley Co., 142 Pa. Super. 603 (1940). Plaintiff has attached a brochure on slippery floors to his brief, but it is gratuitous, since it is not in evidence, and must be disregarded.
Mrs. Sheridan has proved no negligence except her own.
The motion to remove the nonsuit is denied.
Plaintiff appealed.
Conrad G. Moffett, with him George T. Guarnieri, for appellant.
John J. McDevitt, 3rd, with him Peter P. Liebert, 3rd, for appellee.
Order affirmed on the opinion of the learned court below.