Bell v. Great Atlantic & Pacific Tea Co.

• Decision Date: 03 January 1927
• Docket Number: 235
• Citation: 288 Pa. 160,135 A. 607
• Parties: Bell v. Great Atlantic & Pacific Tea Co., Appellant
• Court: Pennsylvania Supreme Court

135 A. 607

288 Pa. 160

Bell v. Great Atlantic & Pacific Tea Co., Appellant

No. 235

Supreme Court of Pennsylvania

January 3, 1927

Argued November 30, 1926

Appeal, No. 235, Jan. T., 1926, by defendant, from judgment of C.P. No. 4, Phila. Co., June T., 1925, No. 11371, on verdict for plaintiff, in case of Mary Bell v. Great Atlantic & Pacific Tea Co. Reversed.

Trespass for personal injuries. Before McCULLEN, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $3,500. Defendant appealed.

Error assigned was, inter alia, refusal of judgment for defendant n.o.v., quoting record.

The judgment is reversed and is here entered for defendant.

George W. Harkins, Jr., for appellant, cited: Markman v. Bell Stores Co., 285 Pa. 378; Burns v. City, 137 Pa 361; Nichol v. Teleph. Co., 266 Pa. 463; Swan v Boro., 242 Pa. 596; Holbert v. Phila., 221 Pa. 266; Springer v. Phila., 22 W.N.C. 132; Hanson v. Boro., 22 W.N.C. 133; Stearns v. Spinning Co., 184 Pa. 519.

William Charles Brown, for appellee, cited: Chapman v. Clothier, 274 Pa. 394; Robb v. Pond Co., 269 Pa. 298; Polenske v. Lit Bros., 18 Pa.Super. 474; Woodruff v. Painter, 150 Pa. 91; Markman v. Stores Co., 285 Pa. 378.

Before FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

Plaintiff brought suit to recover damages for injuries due to a fall on the step of defendant's store which she was entering as a customer, her allegation being that she slipped on ridges of ice which had formed on the step and which could not be seen because they were covered with snow. The trial resulted in a verdict for plaintiff and from the resulting judgment defendant appeals, urging that judgment should be entered in its favor.

The accident occurred on January 12, 1925, about 11 o'clock in the morning. Plaintiff established in her case by the records of the United States Weather Bureau that it had snowed during the night between 1 and 6 o'clock A.M. and again beginning at 9:40 A.M. until 11:40 A.M. and that prior to 11 o'clock from midnight no rain had fallen, that there had been a flurry of snow the day before, which was Sunday, and no rain, that the temperature from 2 o'clock on the morning of the accident until noon ranged from 20 to 28 degrees Fahrenheit. Plaintiff herself testified that it had been snowing on the morning of the accident, but that it was not snowing when she entered the store. She said that as she put her foot on the step to go into the store "there was snow, as I thought, on the step, and my foot slipped, and I whirled around and fell and struck my spine against the step, and as I went to get up I seen the ridges of ice on the step," that there was soft snow on the sidewalk and step which her clothes brushed away as she fell, enabling her to see the ridges of ice. She testified that she told the manager of the store of her fall and that he threw salt and sawdust on the step. She said nothing further as to the ridges of ice and did not indicate the size of them or their cause. She called as a witness in her behalf the manager of the store, who prior to the trial had been discharged by defendant, and he testified that the step was not covered with ice, that what was on it was caused by people who had walked in the snow carrying it on their feet to the step where it froze. He did not know how long the deposits had been there and no other evidence was produced to show the length of time. While he was uncertain in his recollection as to whether he had cleaned the step off that morning, witnesses produced by defendant testified that the pavement and step of the store had been cleaned off in the morning prior to plaintiff's fall. One of these witnesses saw plaintiff fall and testified that there might have been a little snow on the step but there was no accumulation of ice.

The case, therefore, comes down to this on plaintiff's own showing: That ice had been deposited on the step from the feet of persons entering the store, without any proof as to how long the ice had been there, and with evidence in her behalf that snow had fallen during the morning up to a time shortly before the accident and that the...