Katz, Appellant, v. John Wanamaker Philadelphia, Inc.
Supreme Court of Pennsylvania
March 14, 1955
381 Pa. 477
OPINION CONCURRING AND DISSENTING IN PART BY MR. JUSTICE MUSMANNO:
I concur in the affirmance of the lower Court‘s refusal to enter judgment n.o.v. I dissent, however, from the Majority decision to reduce to $18,000 the verdict of $25,000 awarded to the Administratrix of the estate of William Martin Fries, deceased.
The Carlisle Tables of Mortality give to a child of 5 years of age a life expectancy of 51 years. Thus, at the age of 21, William Fries could have looked forward to 30 years of remunerative employment. Assuming an income of $80 per week (the amount earned by his father) and $45 a week for maintenance, he would thus have, beyond his maintenance, the amount of $35 per week to save, invest or spend as he saw fit. On the basis of a 4% increment over the years, the present worth of the total amount, less maintenance, would be approximately $31,000. Therefore, it would appear to me that the sum of $24,204.50 for loss of earning power, less maintenance, would not be excessive.
William T. Adis, with him Adis, McDermott & Suckle, for appellant.
Peter P. Liebert, III, with him John J. McDevitt, III, for appellee.
OPINION BY MR. JUSTICE CHIDSEY, March 14, 1955:
The plaintiff, Mrs. Pauline Katz, sued John Wanamaker Philadelphia, Inc. in trespass to recover damages for injuries sustained as the result of a fall on a marble stairway in the defendant‘s store at 13th and Market Streets, Philadelphia. In her complaint plaintiff charged that her fall was due to defendant‘s negligence in permitting the stairway to remain in a “slippery, wet and slimy condition“. The case was tried before a jury. At the conclusion of plaintiff‘s case the
The court below held that the evidence adduced by the plaintiff was insufficient to establish liability on the part of the defendant.
The testimony introduced on behalf of the plaintiff consisted of her own and that of her companion, Miss Lillian Parkman. On December 14, 1951 the two of them had left their place of employmеnt, located about four or five blocks from the Wanamaker store, a little before 4 P.M. It had started snowing at about 1 P.M. and when they started out there were four or five inches of snow on the ground. Because it was difficult to get transportation on account of the storm, they walked to and entered the Wanamaker store on the Market Street side and proceeded through the first floor toward Chestnut Street. It was still snowing. The two women intended to do some telephoning and to make some purchases. On the 13th Street side of the first floor near Chestnut Street there is a marble stairway leading to the gallery and аnother marble stairway leading from the gallery to the basement. After using the telephone located partway down the first or upper stairway, the plaintiff descended to the gallery where she bought two small lamp shades and Miss Parkman continued to the basement where she bought a pair of galoshеs. It was arranged that the two would meet in the basement near the restaurant which was close to the stairway. After making her purchases the plaintiff started down the stairway leading from the gallery to the basement and after proceeding three or four steps, slipped, fell and “rolled” down the stairway which was straight and contained from 20 to 25 steps.
Miss Parkman testified that аfter making her purchase in the basement, she waited near the bottom of the stairway for about an hour; that she saw somebody falling down the steps whom she subsequently found to be the plaintiff. Asked as to the condition of the
It is a fair inference that because of the weather conditions the steps on the stairway became wet from melted snow dripping from the clothing of customers and from their shoes. Dirt would also be dragged in and deposited. While plaintiff and her companion used the words “mud” and “muddy“, it is apparent that the words were not used in their most literal sеnse but as denoting a dirty condition. Thus the plaintiff‘s testimony in this respect was as follows: “Q. Was there any mud on them? A. I didn‘t test if it were mud. Q. That is what you said. A. But the footsteps looked like they were muddy. Q. Looked like they were muddy? A. They were dark footsteps—water. Q. Water is not mud. A. Well, as you walk there is an impression of walking, you can see it, it was clear.“. From the testimony of the two women the jury could have found that there was a considerable quantity of dirt as well as water on the steps, and that the combination of the two could form a slimy and slippery condition. Plaintiff‘s evidence must be considered in the light most favorable to her with the bеnefit of every fact and reasonable inference deducible from the testimony. So considered, we cannot say that plaintiff failed to make out the existence of an unsafe or dangerous condition.
Counsel for appellee contends that all the plaintiff established was that she slipped because the step was wet and he points to her statement that “I can only say that it was wet, that made my foot shoot out.“,
The appellant also relies upon plaintiff‘s reiteration that she could not say the steps were slippery. A sufficient answer is that there was testimony that they were “very wet” and dirty and plaintiff‘s foot “shot out” from under her. The jury could infer that her foot slipped. Indeed in appellant‘s history of the case it is stated that plaintiff “slipped and fell“. Obviously if plaintiff had testified that the steps appeared slippery to her before she used them, she might well have been charged with contributоry negligence.
Appellee contends that even if it be assumed that an unsafe or dangerous condition existed, it had no actual knowledge thereof and could not be charged with constructive notice. Miss Parkman testified that during the hour she remained near the foot of the stairway there was no attempt to clean or mop up the steps. Thus the condition existed unremedied for at least an hour. What will amount to constructive notice of a defective or dangerous condition existing upon a defendant‘s premises, necessarily varies under the circumstances of each casе and is not solely determinable by the lapse of time between the origin of the unsafe condition and the accident. Under the circumstances
Counsel for appellee states that as is well known, the Wanamaker stоre has numerous floors, aisles and stairways and in bad weather its customers are bound to continually track in water and dirt from the street, and asserts that to oblige it to keep all of its aisles and stairways dry on such days would impose so onerous a burden as to cause a complete cessation of business. We do not intend by our decision in this case to impose so heavy a burden. The proprietor of a large department store is not required to attempt the impossible. Dirty water will inevitably be tracked in during a snow storm and aisles and stairs cannot be immediately made dry and restored to normal condition. Our ruling is confined to the facts in the case before us. Here, under the evidence adduced by the plaintiff, water with accompanying dirt was tracked and accumulated upon a flight of from 20 to 25 smooth marble steps leading from the main and entrance floor. The steps were “very wet” with “a lot of mud on them“. The condition which the jury could find was a slippery one, remained the same for an hour without any attempt to remedy it. The defendant was not required to mop each step after every customer‘s use of it, but in the exercise of the care due to a business visitor,1 the defendant could at leаst have minimized the slippery condition by mopping the steps from time to time
It is also argued that plaintiff was guilty of contributory negligence. As before stated, she testified that the steps did not appear to be slippery, and she descended whеre the steps appeared to be cleaner, using the hand rail for support.
We think the questions of defendant‘s negligence and plaintiff‘s contributory negligence were for the jury.
The judgment is reversed with a venire facias de novo.
DISSENTING OPINION BY MR. JUSTICE BELL:
The majority opinion, it seems to me, makes a mockery of four well established legal principles—(1) a store is not an insurer; (2) plaintiff has the burden of proving that defendant had actual notice of the dangerous condition or that it existed for such a length of time that defendant had constructive notice of it, i.e., could and should have discovered and remedied it by the exercise of reasonable inspection and reasonable care: Parker v. McCrory Stores, 376 Pa. 122, 101 A. 2d 377; Sheridan v. Horn & Hardart, 366 Pa. 485, 77 A. 2d 362. See also: Lanni v. P.R.R., 371 Pa. 106, 88 A. 2d 887; Miller v. Hickey, 368 Pa. 317, 81 A. 2d 910; Lentz v. Allentown Bobbin Works, 291 Pa. 526; 140 A. 541; (3) a jury is not permitted to guess, and guess, conjecture or suspicion do not take the place of or amount to proof: Freund v. Hyman, 377 Pa. 35, 37, 103 A. 2d 658; and (4) plaintiff has the burden of proving her case by a fair preponderance of the evidence and if her own testimony leaves in doubt how the accident happened or whether it resulted from defendant‘s negligence, she cannot recover.
Where the burden of proof is upon plaintiff to establish negligence or any other facts, he cannot recover if his testimony or evidence is so uncertain or inadequate or equivocal or ambiguous or contradictory as to make findings or legitimate inferences therefrom a mere conjecture: Wagner v. Somerset Park, Inc., 372 Pa. 338, 341, 93 A. 2d 440; Musleva v. Patton C. M. Co., 338 Pa. 249, 12 A. 2d 554; Natvig v. P.R.T. Co., 293 Pa. 355, 143 A. 18; Lithgow v. Lithgow, 334 Pa. 262, 5 A. 2d 573; Goater v. Klotz, 279 Pa. 392, 124 A. 83.
Plaintiff, who was carrying a coat and two lampshades, testified on direct examination: “A. . . . I started to walk down the stairs . . . , my foot went under me and shot out; . . . Q. . . . I asked you . . . can you tell us just what it was that caused you to fall? A. Well, the only thing I can remember is that my foot shot out.*” Then follows what I consider an improper suggestive and leading question: “Q. . . . Did you slip on the step or did you misjudge the step, what was it that caused your foot to shoot out?” Then the following questions and answers on cross-examination: “Q. . . . Was it slippery? . . . Q. What was your answer? They were muddy? A. They were wet. . . . Q. Was it slippery as you walked from the main floor to the gallery? A. I couldn‘t tell you. . . . Q. Were they [the steps] slippery? A. No, I can‘t say they were slippery. . . . Q. Were they slippery? A. I don‘t know if they were slippery. . . . A. . . . I am speaking of those stairs that I fell down. Q. What аbout them? A. . . . I saw they
It is clear that plaintiff‘s own testimony failed to prove, but on the contrary, left in a state of uncertainty, “what caused her to fall” and consequently she failed to satisfy her burden of proof that it was defendant‘s negligence that caused her to fall.
Furthermore, if plaintiff, whose view was unobstructed, could not see that the condition of the stairs was dangerous and could not even say that the stairs on which she fell were slipрery, and could not tell whether the marble floor as she walked from the main floor to the gallery was slippery—how could defendant?
We have held that a plaintiff who slipped on steps in a restaurant that were slightly wet was properly nonsuited: Burton v. Horn & Hardart Baking Co., 371 Pa. 60, 88 A. 2d 873. It is not clear just what the specific (and supposedly) dаngerous condition was in the instant case, but assuming arguendo that a dangerous condition existed on the stairway, and assuming arguendo that this condition caused the plaintiff to fall, there is no evidence to prove how long such condition existed, and guess or conjecture that it—whatever it was—existed an hоur cannot satisfy plaintiff‘s burden of proof.
For each and all of these reasons, as well as for the reasons which are more fully and forcefully set forth in Stais v. Sears-Roebuck & Company, 378 Pa. 289, (particularly pages 292-294), 106 A. 2d 216, and the cases cited therein, I dissent.
* Italics throughout, ours.