Bowser v. J. C. Penney Co.

• Decision Date: 08 April 1946
• Docket Number: 3964
• Citation: 46 A.2d 324,354 Pa. 1
• Parties: Bowser et ux., Appellants, v. J.C. Penney Company
• Court: Pennsylvania Supreme Court

46 A.2d 324

354 Pa. 1

Bowser et ux., Appellants, v. J.C. Penney Company

No. 3964

Supreme Court of Pennsylvania

April 8, 1946

Argued September 26, 1945

Appeal, No. 196, March T., 1945, from order of C.P., Butler Co., June T., 1944, No. 7, in case of LeRoy E. Bowser et ux v. J.C. Penney Company. Order affirmed.

Trespass for personal injuries. Before PURVIS, P. J.

Compulsory nonsuit entered. Motion to take off nonsuit refused. Plaintiffs appealed.

The order refusing to take off the nonsuit is affirmed.

J Campbell Brandon, with him Brandon & Brandon, for appellants.

Lee C.McCandless, with him Marshall & McCandless and James E.Marshall, for appellee.

Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.

OPINION

MR. JUSTICE DREW

This is an appeal from the refusal of the court below to take off a compulsory nonsuit. Mildred E. Bowser, plaintiff, was injured by a fall alleged to have been caused by the negligence of the J.C Penney Company, defendant. She and her husband, Leroy E. Bowser, co-plaintiff, brought an action in trespass against defendant and after they had presented their evidence, the trial court on motion of defendant, granted a nonsuit on the ground that plaintiff had not established negligence.

Viewing the evidence as we must in the light most favorable to plaintiffs and giving them the benefit of all proper inferences (Kimble v. Wilson, 352 Pa. 275, 42 A.2d 526), the following facts are established: On March 20, 1942, plaintiffs entered defendant's store in the City of Butler, Pennsylvania, at 9:40 A.M. to purchase some men's work clothes. They walked down the store aisle of the first floor, Mrs. Bowser a few feet ahead of her husband, and when she was about halfway to the rear of the store, she slipped and fell. Her husband and Mr. Robinson, an employee of defendant, assisted her to her feet. She asked why the floor was so slippery and Mr. Robinson said that it had been waxed the previous evening. Plaintiffs then examined the floor and found that where plaintiff fell there was an accumulation of wax, the wife testifying that it was a spot twelve inches square while the husband said it was somewhat larger -- 1 foot by 2 1/2 feet.

Store owners who invite the public to do business on their premises, although not insurers of the safety of the invitee, have the affirmative duty of maintaining such premises in a reasonably safe condition for the contemplated use thereof and the purposes for which the invitation was extended, or to give warning of any failure to maintain them in that condition: Vetter v. Great A. & P. Tea Co., 322 Pa. 449, 185 A. 613; Nettis v. Gen. Tire Co. of Phila. Inc., 317 Pa. 204, 177 A. 39. The doctrine of res ipsa loquitur is inapplicable to such a case and plaintiff must establish the negligence of defendant. No liability attaches from the mere happening of the accident: Dimarco v. Cupp Grocery Co., 88 Pa.Super. 449.

We have held that it is not negligence per se on the part of an owner to wax or oil his floors: Diver v. Singer Mfg. Co., 205 Pa. 170, 54 A. 718. The fact that a person falls on a recently waxed floor does not of itself justify a finding of negligence on the part of the owner: McCann v. Phila. Fairfax Corp., 344 Pa. 636, 26 A.2d 540. But, in the floor is improperly waxed thus creating a dangerous condition, the question of negligence of the owner is for the jury: Weir v. Bond Clothes, Inc., 131 Pa.Super. 54, 198 A. 896; Ralston v. Merritt, 117 Pa.Super. 487, 178 A. 159; MacDonald v. F. & W. Grand, 89 Pa.Super. 526. However, the trial judge should not permit an issue of fact to be presented to the jury, where the evidence is such that upon full belief and the drawing of all proper inferences, reasonable men could not reach the conclusion that there was negligence. Plaintiffs rest their claim of negligence on the ground that there existed a spot of wax on the store floor which caused Mrs. Bowser to fall and since this condition existed the proper inference to draw was that the wax was improperly applied. The real question is not whether there was an improper application but whether such alleged improper application created a condition so obviously dangerous as to amount to evidence from which an inference of negligence would arise: Diver v. Singer Mfg. Co., supra., Dimarco v. Cupp Grocery Co., supra.

The testimony, in part, presented by plaintiff as to the condition of the floor whether she fell is as follows:

"Q. As you went along in the store, had you noticed anything as to the condition of the floor? A. Nothing until I slipped. Q. What was the floor like where you fell? A. The first you could tell there were new boards because they weren't as dark in color as the other boards were and this Microshene was shining and waxy. It had sort of a greasy wax on it... Q. And they got you up and you say the first you noticed the condition of the floor as you describe it, was at that time? A. It was just a waxy, glossy film on the floor and there was more in that place than there had been toward the...