Hampton v. S. S. Kresge Co.

• Citation: 307 A.2d 366,224 Pa.Super. 543
• Decision Date: 14 June 1973
• Docket Number: K-M
• Parties: Laura May HAMPTON, alius dictus Laura Hampton v. S. S. KRESGE COMPANY, a corporation t/d/b/aart and Merritt Corporation.
• Court: Pennsylvania Superior Court

Page 366

307 A.2d 366

224 Pa.Super. 543

Laura May HAMPTON, alius dictus Laura Hampton v. S. S. KRESGE COMPANY, a corporation t/d/b/a K-Mart and Merritt Corporation.

Superior Court of Pennsylvania.

June 14, 1973.

Application for Allocatur Denied July 23, 1973.

Thomas J. Godlewski, Greensburg, for appellant.

Christ C. Walthour, Jr., Kunkle, Walthour & Garland, Greenburg, for appellee.

Before WRIGHT, President Judge, and WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE and SPAETH, JJ.

HOFFMAN, Judge:

Appellant contends that she produced sufficient evidence to have her case go to a jury on material issues of fact, and that the trial court committed reversible error in granting defendants' motion for compulsory nonsuit.

An action in trespass was instituted by Laura May Hampton as a result of injuries sustained in an accident occurring on June 26, 1964. At approximately 9:00 p.m. on the evening of the accident, Mrs. Hampton was shopping in a K-Mart self-service department store. She was accompanied by her fourteen-month old daughter, her mother-in-law (now deceased), and her husband's aunt, Dorothy Hampton. While walking through one of the aisles of the store, appellant was struck by five or six plastic toy boats and wooden oars, which had fallen from a shelf overhead. On November 8, 1971, trial was held on the issue of liability alone before the Honorable Earl S. Keim of the Common Pleas Court of Westmoreland County and a jury. After plaintiff rested, the defendants moved for nonsuit. The trial court granted defendants' motion and discharged the jury. It is from a court en banc denial of plaintiff's motions to strike the nonsuit and grant a new trial that this appeal followed.

Plaintiff testified during the course of the trial that she was in the aisle looking for swimming equipment for her daughter. She said that she was in the aisle for about ten minutes and noticed some toy boats stacked on the top row of a shelf protruding out into the aisle. The boats were approximately nine feet off the ground. Appellant testified that the boats were shaped like rowboats and were approximately five feet long and two and one-half feet wide. They were stacked upside down and placed one inside the other. The back of the boats rested on the rear perpendicular portion of the shelf and protruded upward to the rear; while the pointed nose of the boat angled downward. In this slanted position, the boats rested on the shelf. No one was seen in the area of the boats during the time appellant was in the aisle. Appellant's aunt testified in the same manner as to the approximate dimensions, position, and undisturbed nature of the boats, as well as the observed estimations of the dimensions of the shelves upon which the boats were situated. She further testified that she saw the boats in the last immeasurable moment as they slid from their resting place and fell to the floor striking appellant.

Appellant submitted an offer of proof that an expert witness, a safety engineer, was ready to testify as to the center of gravity of said boats and the tendency of those boats to fall from their allegedly precarious position; he was not permitted to testify. The trial judge ruled that as no evidence was produced as to the weight of the boats and as precision in the dimensions of the boats and shelf were lacking such testimony would be mere conjecture.

Finally, appellant called as on cross-examination the store manager of K--Mart, who testified that in his opinion it would be impossible for boats to be stacked in the manner indicated by plaintiff at the height asserted. Though plaintiff called the store manager as on cross-examination the trial judge ruled that appellant was bound by this testimony.

Thereafter, liability testimony was concluded and the nonsuit entered. The court en banc stated in its Opinion: 'This Court is of the opinion that the testimony would have to be more precise and definite as to the dimensions and weight of the boats, angle and stacking, dimensions and construction of the shelf or shelves involved to bring this case within the ambit of Farber (Garber) v. great Atlantic and Pacific Tea Company, 397 Pa. 323, 155 A.2d 346 (1959), wherein the Court held that improper stacking of goods in a store which cause those goods to fall and injure the plaintiff could be the basis of liability. . . . We just cannot permit the Jury to guess and speculate when the necessary evidence is not present.' We do not agree.

It is a fundamental rule that in all negligence cases the plaintiff must establish a prima facie case of negligence and causation. Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961). The fact that an injury is sustained as a result of a falling object does not relieve plaintiff of that burden of proof. Certainly, the mere fact that a falling object caused injury to a plaintiff does not take a case to a jury, without Any proof of what caused it to fall. Stewart v. Morow, 403 Pa. 459, 170 A.2d 338 (1961). Nevertheless, our Supreme Court has often said that in cases of falling objects 'the proof necessary to establish negligence under the circumstances need be very slight.' Stewart v. Morow, supra at 462, 170 A.2d at 340; Rucinski v. Cohn, 297 Pa. 105, 114, 146 A. 445 (1929); Dougherty v. Phila. Rapid Transit Co., 257 Pa. 118, 124, 101 A. 344 (1917).

The Pennsylvania Supreme Court in Garber v. Great Atlantic & Pacific Tea Company, 397 Pa. 323, 155 A.2d 346 (1959), stated to what degree and with what certainty the 'slight' proof of negligence had to rise. In Garber, plaintiff was shopping in defendant's self-service store. She was standing by a display of cans in the center of the aisle. Her children stood nearby, but no one else was in the vicinity of the display. The cans were piled three high, each ten inches in height, making a symmetrical pyramid of about thirty inches high. Suddenly, and without anyone touching the cans, one of the cans fell to the floor striking plaintiff on her foot. No one, including the plaintiff, saw the can fall; however, it was apparent that the symmetrical pyramid lacked the can which would have been at the top of the column. Defendant's store manager stated that the cans were usually stacked flat and not in such a dangerous fashion. The Court said at 325--326 of its Opinion, 155 A.2d at 347--348: 'Defendant's responsibility for such an occurrence is an entirely reasonable conclusion under Smith v. Bell Telephone Co. of Pennsylvania, 397 Pa. 134, 153 A.2d 477, 480 (1959), where we said: 'It is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability. The judge cannot say as a matter of law which are facts and which are not unless they are admitted or the evidence is inherently incredible . . .. The facts are for the jury in a case whether based upon direct or circumstantial evidence where a reasonable conclusion can be arrived at which would place liability on the defendant.'

'The jury was therefore free to discard less useful hypotheses, such as a slight earthquake, the jarring of a passing truck, a small boy with a slighshot, or a clumsy fellow customer. There is nothing inherently unreasonable or incredible about the defendant's negligent stacking.'

We believe that the evidence produced by the plaintiff in the instant case was sufficient for a jury to infer defendant's liability, either from the standpoint of negligent stacking or on the theory of 'notice' to the defendant of the dangerous condition of the boats caused by some unknown third person in causing the boat's disarray.

Plaintiff and her aunt testified that the boats which were five feet long and two and one-half feet wide were stacked upside down one inside the other. The bodh stated that the boats jutted out into the aisle some nine feet off the ground. Furthermore, they observed that the boats were on the top shelf slanted on a downward angle the rear of which...