These appeals are by the defendant from respective judgments for the plaintiffs, a husband and wife, for damages for personal injuries to the wife allegedly caused by negligence of the defendant. The appellant charges error in the lower court's refusal of the defendant's motions for judgments n. o. v. It is the appellant's contention that the wife plaintiff was guilty of contributory negligence as a matter of law.
Viewing the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the verdict, as a motion for judgment n. o. v. requires, the following are the facts material to the questions raised by the appellant. At the time involved, the defendant corporation operated a moving picture theater in Ellwood City, Pennsylvania. The theater fronted on Lawrence Avenue and ran back a distance of one hundred and fifty feet to Bell Avenue which parallels Lawrence Avenue. On one side of the building, and adjacent thereto, there was a vacant lot, fifty feet wide and extending *Page 170 from Lawrence Avenue to Bell Avenue, where the defendant maintained a parking lot for the use of patrons of its theater. The parking lot was level in general and was surfaced with slag. The wall of the theater building on the side of the parking lot, and at a point about midway between Lawrence Avenue and Bell Avenue, was offset at right angles to a depth sufficient to allow for an emergency exit door facing Bell Avenue. The sill of the door was some four to five feet below the elevation of the parking lot. From this exit, a paved ramp ascended toward Bell Avenue along the setback rear portion of the building wall, the ramp attaining ground level at the inside edge of the Bell Avenue sidewalk. Lateral support of the parking lot along the sunken ramp was afforded by a retaining wall made of concrete blocks. The wall was about six inches in width on the top. Its height above the parking lot varied from nothing at the Bell Avenue end to approximately fifteen inches where the retaining wall abutted the building wall at the offset. The defendant maintained a flood light on the side of the theater building to illuminate the parking lot at night; and there was also a light over the emergency door. The entrance to the theater was on Lawrence Avenue.
About 6:45 P. M. on October 5, 1946, it then being dark, Mr. and Mrs. Falen, the plaintiffs, drove in their automobile onto the parking lot, intending to enter the theater. On the two or three previous occasions when they had used the lot, they had parked their automobile near the front (or Lawrence Avenue) end, but, on this occasion, the only parking space available was toward the rear (or Bell Avenue) end. Mr. Falen, who was driving the automobile, parked it with its back toward the retaining wall. While he was closing the automobile's windows, turning out its lights, etc., Mrs. Falen had alighted on her side of the car. Neither the defendant's *Page 171 flood light nor the light over the emergency door was lighted. The lot was not in total darkness, however. The street lights on both Lawrence and Bell Avenues threw some light on the parking lot. Indeed, the defendant's manager testified that the light afforded by the street lights gave "enough illumination to allow one to go through the parking lot . . ." But, unquestionably, the light was dim. Mrs. Falen saw the retaining wall, and, mistaking it in the dimness of the light for the curb of a sidewalk that seemed to run forward along the building toward Lawrence Avenue, she stepped up on the wall and forthwith fell down onto the ramp — a distance of about a foot and a half — receiving the injuries in suit. The step up onto the wall at the place of the accident was no higher than an ordinary sidewalk curb.
The appellant argues that there was either (1) enough light for Mrs. Falen to see the actual condition existing, in which case she assumed the risk, or (2) not enough light for her to see the true situation, in which event she was negligent, as a matter of law, in stepping forward when she could not see what lay before her. However, the legal problems, which the circumstances present, are not to be catalogued so simply. Between light and darkness there are varying degrees or shades of light whereunder a question of contributory negligence, because of a failure to see distinctly, necessarily becomes a matter for a jury to determine. The rule was well stated for this court in Dively v. Penn-Pittsburgh Corporation, 332 Pa. 65,70, 2 A.2d 831, where Mr. Justice STERN said: "It may be stated, therefore, that the controlling factors in determining the question of contributory negligence in accident cases of this nature are the degree of darkness and the justification for the injured person's presence in the place of danger."
Here, the jury was warranted in finding that, while the light was sufficient to enable Mrs. Falen to see, and *Page 172 that she did see, it was also so dim as to deceive her into mistaking the top of the retaining wall for the curb of a sidewalk. Such being the situation, the court could not have properly said that, in stepping up on the wall, Mrs. Falen was guilty of contributory negligence as a matter of law; and, once poised there, she had no chance to back down or halt in her course before her momentum precipitated her down onto the ramp. "When one walks in dim light where he has no reason to apprehend danger and uses his best judgment as he proceeds, and then meets with an accident, the question whether or not he is guilty of contributory negligence is usually for the jury":Murphy v. Bernheim Sons, Inc., 327 Pa. 285, 288-289,194 A. 194.
The cases which the appellant cites on this branch of its argument do not controvert the rule here applicable. InBartek v. Grossman, 356 Pa. 522, 52 A.2d 209, the plaintiff was denied a right of recovery for injuries received in a fall through an open trap door in a dark and unoccupied store room because, as his own testimony revealed, he could not see where he was going but assumed that, in following the employe of the owners' renting agent, he would be safe. But, we also recognized in that case that, while one must under all circumstances use his senses that are available to him, — "If he uses his sense of sight but because there is enough light to cast shadows which mislead him to his injury the question of his negligence may be for the jury." Again, in Conboy v. OsageTribe No. 113, 288 Pa. 193, 135 A. 729, the injuries for which the landlord of the building was held not liable resulted from the plaintiff's fall down an "unlighted" stairway with which he was familiar and which he had attempted to descend from a hall that was "totally dark".
The appellant's further contentions are also without merit. Under the evidence in the case, the jury was justified in finding that Mrs. Falen had a "fairly compelling *Page 173 reason for walking in a place which, though dark, [was] not utterly devoid of light". She was rightfully on the parking lot and chose as a way of egress what appeared to her in the dim light to be a safe course. In such circumstances, contributory negligence as a matter of law may not be declared. SeeDively v. Penn-Pittsburgh Corporation, supra, at pp. 69-70, and cases there cited. Nor is she to be charged with having chosen an unsafe way out of the lot when she knew of a safe course to the theater entrance, viz., the driveway over the lot followed by her husband in driving the automobile to the space in which he parked it. There is nothing in the evidence to charge Mrs. Falen with knowledge, prior to the happening of the accident, that what appeared to her in the semi-darkness to be a sidewalk was not in fact a sidewalk. To say, in such circumstances, that she chose an unsafe way of leaving the lot in preference to a safe one would be to use the eventuality of her choice, i.e., the mere happening of the accident, as proof that she was negligent.
The cases of Barth v. Klinck, 360 Pa. 616, 62 A.2d 841, andHellriegel v. Kaufmann Baer Company, 337 Pa. 149, 9 A.2d 370, which the appellant cites, are distinguishable from the instant case. In the Barth case, the plaintiff chose an obviously unsafe course in seeking access to her home at night over a barricaded sidewalk repair job; and, as she herself admitted, in the darkness, not being able to see anything, she stepped into the hole, and, so, sustained the injury for which she sued. In the Hellriegel case, the plaintiff had proceeded pell-mell with a crowd descending to the street by means of several steps from the first floor of a department store. Without looking to see where the descent began or its character, she fell down the steps and suffered the injury for which she sued the owner of the store. While there was some evidence that the light was dim, it could not reasonably be said that the *Page 174 degree of darkness either misled or deceived her. Her own testimony ". . . plainly disclose[d] a manifest and complete failure to exercise ordinary care under the circumstances. . . ."
The judgments are affirmed.