185 Pa. Super. 163 | Pa. Super. Ct. | 1958
Opinion by
In mid-afternoon of March 13, 1954, the plaintiff entered the defendant’s market house from the Green Avenue entrance in the City of Altoona. She had been buying meat and vegetables in this market for eight years and in general was familiar with it and the manner of its operation. She had proceeded about 8 or
The plaintiff testified that although she watched where she was going she did not see the piece of banana peel on the floor of the aisle before she fell. And she attributes her fall to the banana peel, only for the reason “It was on the tip of [her] shoe” where she said she first observed it, after she had fallen. No other witness testified to seeing the piece of banana peel either before or after the plaintiff fell. And the only evidence as to its size came from the plaintiff herself as above noted and again on cross-examination, as follows: “Q. You said, I believe, it was how long? A. About 3 inches I judge. I would say about like that. (Indicating with hand gestures.) Q. And how wide? A. As close as I can say about l/16th of an inch. Q. Would you still say it was a banana skin or banana stem? A. It was a banana skin. Q. You are sure of that? A. Yes I am.”
The mere fact that the plaintiff may have fallen in the aisle of defendant’s market does not in itself charge the defendant Avith negligence; res ipsa loquitur-does not apply. Markman v. Bell Stores Co., 285 Pa. 378,
But regardless of the validity of the above conclusion the plaintiff still has not met the burden on her of proving negligence. There is nothing whatsoever in her testimony when viewed in its most favorable light nor in the testimony of any other witness as to how long the offending substance had been in the aisle nor where it had come from; and there is no evidence in the case from which it may be inferred that the defendant had either actual or constructive notice'of the
Judgment affirmed.