Tie Bar, Inc. v. Shartzer

Horney, J., delivered the opinion of the Court. ⁷¹³ The question presented by this appeal is whether the trial court should have directed a verdict in favor of a shopkeeper on the ground that a business invitee injured on the premises was contributorily negligent as a matter of law. At an early morning hour on the next to the last day in January of 1963, Howard Shartzer, a painter employed by an interior decorating company, was injured by a fall down the basement steps as he and his son were preparing to paint the interior of a tie shop located in the Wheaton Plaza Shopping Center pursuant to arrangements made the previous day with Alvin Silverman, the owner of the Embassy Father and Son Shop (located in the same shopping center) and manager (as well as a stockholder) of The Tie Bar, Inc. The shopkeeper had told the painter that he would meet him at about 7:30 the next morning, go with him to the tie shop and show him what was to be done, but the shopkeeper, who did not then have time to accompany the painter, gave him the shop key and, after telling him which walls were to be painted, informed him that he would have to go into the back room of the shop to turn on the lights because all lighting was controlled by the circuit breaker panel which was located there. The painter and his son arrived at the tie shop around 7:45. The shop, except for a dim light from the show windows in front, was dark.

Upon entering, the father proceeded to the back room, as instructed, to turn on the lights. As he opened the door which swung inwardly and stepped inside, he experienced a feeling of “walking on air” and tumbled down the basement stairway. After his son had helped him up the steps, the father lay down in the store to wait for his wife to take him to a doctor. There was a landing between the partition wall and the stairway which was only thirty inches wide.

While he was lying on the floor, the lady in charge of the shop came in to open up the store for business and (according to the evidence given by the injured person at the trial) she exclaimed: “Oh, my goodness, I knew that was going to happen sooner or later. I told Mr. Silverman he should keep a light burning there.” The injured painter sued The Tie Bar for damages and joined the shop manager as well as the Embassy Father and Son Shop as defendants. ⁷¹⁴ At the trial of the case, the plaintiff-appellee testified in greater detail as to the facts summarized above. When he was. asked on cross-examination whether he had seen a light switch beside the door leading to the rear room, he replied that he had not; that it was dark inside the shop but that he might have been able to see it if he had been looking for one; but that he was not looking for a switch because the shop manager had told him that all lights in the shop were controlled from the panel in the back room. When the son (Howard Shartzer Junior) was called as a witness, he not only corroborated the testimony of his father by describing the events leading up to the accident, but stated that when he heard the commotion in the back room he went to the door and lit a match to see what had happened, that he then went into the room and after lighting more matches found the circuit breaker panel and pushed the buttons and all the lights in the store went on including the light over the stairway.

The store manager (a defendant-appellant), who was called as an adverse witness by the plaintiff-appellee, testified that there was a light switch alongside of the door leading to the back room which could be turned on at any time irrespective of the circuit breaker. He further testified (when called in his own behalf) that he had gone to the tie shop himself that morning and turned on the lights. At the close of the evidence offered by the plaintiff a motion for a directed verdict in favor of the Embassy Father and Son Shop was granted, but was denied as to the other defendants-appellants. After all of the evidence was in, the trial court submitted the issues of negligence and contributory negligence to the jury which found for the plaintiff-appellee as to both questions.

The defendants-appellants do not contest the finding of primary negligence but contend that the plaintiff-appellee was contributorily negligent as a matter of law. We think the issue as to. this was properly submitted to the jury. The contention is that the plaintiff-appellee, having called the store manager as an adverse witness, is bound by his testimony to the effect that