79 Pa. Super. 126 | Pa. Super. Ct. | 1922
Opinion by
The appellant, Margaret Smith, one of the plaintiffs in the action, was injured on the 12th of December, 1918, in a store kept by the firm of Charley Brothers. She was there making some purchases about one o’clock in the afternoon when a structure composed of shelves, erected on the west side of the building and covering a space about 75 feet long on which merchandise of various kinds in tins, boxes, bottles and cartons was kept, toppled over. The shelves were supported by a base of considerably greater width which had the height of an ordinary store counter. A molding or cornice was attached to the shelf structure at the top and this projected several inches over the shelves. On the top of this structure including the molding or cornice, on the day mentioned, there was also a considerable quantity of merchandise in cartons and perhaps in other packages. While Mrs. Smith was standing near the counter on the west side of the room and about 15 or 18 feet from the front of the building, this shelf structure fell on the counter and the merchandise contained on the shelves and on top of the structure was thrown on the counter and on the floor. Mrs. Smith was struck by something not described in the evidence and one of her legs was thereby broken. The defendant was the owner of the building and the plaintiff believing that he was legally responsible for her injury brought this action against him. The building was erected in 1889 about which time the shelves were constructed. It was built to be used as a store building and was so occupied by the owner until 1898 when the defendant bought it. He conducted a general store there until October, 1917, when he leased the building to Charley Brothers to be used as a store. The charge against the defendant in the statement of claim was that at the
On behalf of the defendant, it was shown by Mr. Mowry that he built the shelving in 1884. He was a carpenter by trade and had been engaged in that business for about fifty years at the time his testimony was given. It was shown by him that the material used for the shelving was white pine; that it was good material and suitable for the purpose — the witness had had experience in such work. The shelves were attached to the wall by nails. Mr. Shirey, another carpenter, replaced the shelves. He testified that he took the nails out of the shelves which pulled out of the studding and that they would be hidden unless the casual observer would
The court submitted the case to the jury on the evidence of Shankle and Woldt, the son-in-law, to inquire whether the accident occurred because of the insufficient strength of the shelf structure with the instruction that if they should so find, a verdict might be rendered for the plaintiff. On a motion for a judgment non obstante veredicto, the trial judge reviewed the evidence and reached the conclusion that the verdict could not be sustained on the evidence and judgment was accordingly entered. The burden was on the plaintiff to support the allegations of the statement of claim by competent testimony. The occurrence of the accident did not create a presumption of negligence. It was the undertaking of. the plaintiff to show by satisfactory evidence that the defendant was responsible for her injury. The fact to be proved was that the defendant had knowledge of the insecurity of the shelving at the time he leased to the tenants who were conducting the store, or that its condition was such that he ought reasonably to have known that it was unfit for the purpose. As there was no attempt to do more than prove that there was not a sufficient number of nails or spikes used to hold the structure to the wall, and as this evidence was given by one
The learned judge of the court below has given convincing reasons for his action in entering the judgment appealed from and we concur therein.
The judgment is affirmed.