132 A. 178 | Pa. | 1925
Mrs. Markman brought this action to recover damages sustained by a fall at the entrance way of defendant's store, situated at the corner of Germantown Avenue and Ashmead Street, in the City of Philadelphia. On the morning of November 28, 1923, she had gone to an adjoining place of business and purchased two loaves of bread. Carrying these, she approached the building of defendant from a triangular platform, the sides of which were parallel with the adjoining house lines, the floor above being held up by an iron post located at its apex. The door leading into the sales room was constructed at the base, the latter being about nine feet in width. On the morning in question, when the plaintiff entered the store, the proximity of other customers going in precluded observation of the step as she came from Germantown Avenue. After completing her purchases, she departed through the door nearest Ashmead Street, carrying *381 four parcels of merchandise, with a shopping bag over her arm. Again, according to the testimony, the view was obstructed by persons both in front and at her side. Evidence was offered to show plaintiff then slipped on vegetable refuse, which had accumulated on the wet platform and step, and fell. Cabbage leaves and a piece of fat meat, parts of the same kind of produce offered for sale, were found adhering to the sole of her shoe after the accident. Both bones of the left leg between the knee and ankle were fractured, necessitating her removal to a hospital where requisite treatment was given for several weeks. Since that time, she has been compelled to make use of a brace and crutches, and continues to suffer pain and inconvenience. The jury rendered a verdict for $3,500, and the learned court below declined to disturb it. From the judgment entered thereon this appeal was taken.
The rulings made at the trial are not challenged, nor is the charge of the court complained of as either erroneous or inadequate. The testimony offered on the questions of negligence and contributory negligence, and upon which the jury was directed to pass, was fully referred to and analyzed, and the law applicable thereto correctly stated. A reading of it will show that the rights of both parties were amply protected. All of the points presented by defendant were affirmed, with the exception of the request for binding instructions in its favor, and it is to the refusal to so order, and to sustain a motion for judgment non obstante veredicto, that the two assignments of error filed are alone directed. In considering the sufficiency of the evidence to sustain the verdict, we must therefore give plaintiff the benefit of all the evidence and inferences therefrom favorable to her, and reject all others: McDonald v. Pittsburgh,
It is first insisted that plaintiff failed to establish any actionable negligence on the part of defendant. This burden rested upon her, for its presence is not to be *382
presumed from the mere fact that the injury was caused by the fall at the entrance to the store: Chapman v. Clothier,
In the present case, it appeared the defendant conducted a store, selling groceries, meat and vegetables, and it was to make purchases of these that plaintiff entered upon the premises. When she left, and fell, there were found on her shoe fat meat and cabbage leaves, evidently the cause of her slipping. Testimony was offered to show that celery, lettuce and other plants were washed on the street at the right of the door, that parts became loose and accumulated on the pavement and step, and that this condition existed at the time of the accident. Under proper instructions, the jury has found that there was a failure to protect customers from this possible peril, and the injury here complained of was the result. The mere presence of such refuse, as described, does not in itself show negligence, for this condition may temporarily arise in any store of this character, though *383
the proprietor has exercised due care; and, if it appears that proper efforts are made to keep clean the passageways so they may be safely traversed, he is not to be held responsible if some one accidentally slips and falls. Where, however, it is disclosed, as here, that the dangerous condition, arising from the same cause, was not a mere chance occurrence, but so often repeated as to call for frequent notices to the owner, and on one occasion to the police, and the same situation was shown to have existed when the customer was hurt, we cannot say the jury was not justified in finding defendant failed in his legal duty. The owner was liable for the negligence of the employees in not keeping the aisles and entrances reasonably clean and safe, though the dangerous condition existing was contrary to his orders or wishes: Whaley v. Citizens' Nat. Bank,
It is further insisted that, even if a finding of negligence was justified, the evidence showed such lack of attention on the part of Mrs. Markman as to defeat her action. She entered the store on the Germantown side of the doorway, but, as before noted, her view of the platform was obscured by those walking in front and by her side; the same was true when she departed after making her purchases, if the testimony is to be believed. On the latter occasion, she was burdened with four parcels held in front, extending twelve or fifteen inches from her body, to her chin, and carried a handbag on her arm. It is incumbent on one seeking to recover for loss, such as here complained of, to keep a general outlook to observe defects which may give rise to danger (Brown v. White,
The judgment is affirmed. *385