Gorman v. Simon Brahm's Sons, Inc.

• Decision Date: 25 November 1929
• Docket Number: 88,89
• Citation: 148 A. 40,298 Pa. 142
• Parties: Gorman et ux., Appellants, v. Simon Brahm's Sons, Inc
• Court: Pennsylvania Supreme Court

148 A. 40

298 Pa. 142

Gorman et ux., Appellants, v. Simon Brahm's Sons, Inc

Nos. 88, 89

Supreme Court of Pennsylvania

November 25, 1929

Argued October 4, 1929

Appeals, Nos. 88 and 89, March T., 1929, by plaintiffs, from order of C. P. Allegheny Co., Oct. T., 1926, No. 1173 refusing to take off nonsuit, in case of Frank M. Gorman et ux. v. Simon Brahm's Sons, Inc. Affirmed.

Trespass for personal injuries. Before MARTIN, J.

The opinion of the Supreme Court states the facts.

Nonsuit refusal to take off. Plaintiffs appealed.

Error assigned, inter alia, was order refusing to take off nonsuit, quoting record.

The order refusing to remove the nonsuit is affirmed.

C. J. Tannehill, with him Leo P. Heid, for appellants.

Charles F. Patterson, for appellee.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

PER CURIAM:

We adopt the following excerpts from the opinion of the court below:

"This is an action of trespass brought by plaintiffs to recover damages for personal injuries to Catherine C. Gorman (hereinafter called plaintiff), caused by a fall upon steps in a store owned and conducted by defendant. The entrance to the store from Fourth Avenue [Pittsburgh] is through swinging doors opening into a vestibule from which an ascending flight of nine steps leads to the main floor of the store. On the day of the accident, plaintiff, a customer of defendant, entered the store with her husband, to make some purchases. While they were ascending the steps described employees of defendant were carrying merchandise, including spinach in open baskets, up the steps to the main floor of the store. Plaintiff and her husband remained in the store for an hour, making purchases, and then started to descend the steps to the street, [when she] stepped upon a quantity of spinach, described as a bunch or handful, lying upon the tread of the upper step. She slipped on this substance and fell down the steps to the vestibule, causing the injuries of which complaint is made. Her husband went to the place from which she fell and found a handful of wet and crushed spinach lying on the upper step.

"The doctrine of res ipsa loquitur has no application to these facts and it was essential that plaintiffs show a failure upon the part of defendant to exercise reasonable care for her safety. The mere presence of the spinach on the step, without more, does not show negligence. This condition may arise in any grocery store or market, in the absence of negligence upon the part of the owner: Markman v. Bell Stores Co., 285 Pa. 378. It was necessary for plaintiffs to prove, therefore, that the spinach had remained upon the steps long enough to charge defendant with constructive notice of its presence; or that it was not a mere chance occurrence but a condition so often repeated as to warrant an inference that defendant had notice thereof.

"Plaintiffs' contention is that there is sufficient evidence from the facts above outlined to justify a finding of constructive notice. It must be taken as true, for the purpose of considering the present motion, that defendant's employees carried spinach in open baskets from the street to the main floor of the store an hour before plaintiff fell. Plaintiffs...