178 A. 159 | Pa. Super. Ct. | 1935
Argued March 4, 1935. On March 7, 1930, at about 10 a.m., the wife plaintiff, carrying a paper shopping bag about 18 inches wide and 2 feet long, entered the drug store of the defendant. The day was dark and the store was dimly lighted. The injured plaintiff opened the door, walked inside, turned around, closed the door, and after she had taken a second step she slipped and fell to the floor and slid thereon until she came in contact with the soda fountain, injuring her spine. After being assisted to arise, she observed an employee of the defendant on the opposite side of the store on his knees waxing the floor. She then saw on the floor "a greasy, waxy substance similar to a thick vaseline . . . . . . as unguentine, or a salve," which had been unevenly placed thereon. Where she slipped and in some other places it was from one to one and three-quarter inches thick.
A Mrs. Jordan, who entered the store after Mrs. Ralston and was standing at the door just as the latter fell, testified: "I just gripped myself or I would have gone down." Mrs. Morris, another witness, stated that she had just preceded Mrs. Ralston into the store, and "saw a man and boys coming out, and this one boy was sliding along on his feet like on the greasy floor," which put her on her guard.
The court submitted the question of the wife plaintiff's contributory negligence and defendant's negligence to the jury, and verdicts were rendered in favor of the plaintiffs.
The first assignment of error is to the refusal of the *489 court to giving binding instructions, on the ground that the evidence showed Mrs. Ralston was guilty of contributory negligence and the plaintiffs failed to establish the defendant's negligence.
The defendant argues that as only one-half the floor was waxed, a way was open for Mrs. Ralston to walk on the untreated portion, citing Weiner v. Phila. R.T.,
Was there sufficient evidence to submit to the jury the question of defendant's negligence?
In Robb v. Niles-Bement-Pond Co., Inc.,
"The owner or occupant of premises who induces others to come upon it by invitation express or implied owes to them the duty of using reasonable or ordinary care to keep the premises in a safe and suitable condition, so that they will not be unnecessarily or unreasonably exposed to danger."
In Markman v. Fred P. Bell Stores Co.,
In Klein et ux. v. F.W. Woolworth Co.,
Our attention is called by the appellant to Spickernagle v. Woolworth,
In the McCann case, the court said (p. 368): "The most that can be said of plaintiff's testimony is that it indicated the floor of her shop had been freshly waxed, and that in walking across it she slipped and fell." Well, that is not sufficient proof of negligence.
In the Dimarco case, a floor had been oiled by defendant's employee and the plaintiff slipped and fell, but there was no testimony that the oil had been applied improperly, spread too thickly, or lay in gobs, as in the instant case, and recovery was not allowed.
We are thoroughly convinced that the defendant's negligence was for the jury.
The second assignment of error relates to the failure of the court to individuate sufficiently the damages, pain and suffering, which are exclusively attributed to the injury to plaintiff's spine. This contention was not vigorously pressed and is without merit. Mrs. Ralston was operated upon for injury to her spine on April 21, 1930, which was some time after she had submitted herself to a goitre operation. The court was very careful to instruct the jury that they were to allow compensation only for any pain and suffering, *492 expenses, etc., resulting from the injury sustained in defendant's store.
We find nothing on the record to warrant our disturbing the verdicts of the jury.
Judgments are affirmed.