Parker v. McCrory Stores Corp.

• Decision Date: 04 January 1954
• Citation: 376 Pa. 122,101 A.2d 377
• Parties: PARKER v. McCRORY STORES CORP.
• Court: Pennsylvania Supreme Court

Page 377

101 A.2d 377

376 Pa. 122

PARKER v. McCRORY STORES CORP.

Supreme Court of Pennsylvania.

Jan. 4, 1954.

Bennett B. Friedman, Bradford, for appellant.

W. D. Gallup, E. G. Potter, Robert J. Healy, Gallup, Potter & Gallup, Bradford, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

BELL, Justice.

Plaintiff, about 48 years of age, entered the store of defendant as a prospective customer on Saturday, February 3, 1951, about 3:50 p. m. It had been snowing intermittently during the day and some of the snow had been carried into the store and melted there. There were two doorways; plaintiff entered the right-hand door and walked about 6 feet--taking 3 or 4 steps--and slipped and fell on the wooden floor and suffered severe injuries. He was nonsuited.

On this appeal it is by now hornbook law that plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence, and all conflicts therein must be resolved in his favor. McDonald v. Ferrebee, 366 Pa. 543, 79 A.2d 232.

Plaintiff was looking at the floor; it looked very sloppy; he saw it was wet and dirty and there was a puddle or pool of water about 5 feet in diameter into which he deliberately walked. The aisle was sufficiently wide to have permitted him to have passed by the pool of water if he had gone to his left just by the entrance of the lefthand door. Several witnesses came in after the accident and testified as to the wet floor; two or three witnesses testified to having entered the store three or four or five minutes prior to plaintiff's accident and that the floor was 'plenty wet', 'a puddle', 'a pool of water', when they entered.

The store was not crowded, the lighting was good where plaintiff fell; plaintiff's view was not obstructed by other customers or by carrying any package; and the only evidence of the existence of the pool of water which was caused by the melted snow was that it had existed for a period of from 3 to 5 minutes.

Under these facts the Court below wisely and correctly granted a nonsuit. Plaintiff failed to prove that defendant had either actual or constructive notice of the dangerous condition above described.

In Lanni v. Pennsylvania R. R., 371 Pa. 106, 88 A.2d 887, 888, a judgment non obstante veredicto was entered by this Court where a plaintiff fell by slipping upon grease in defendant's driveway, where there was no evidence how long the grease had been on the driveway. The Court said:

'The law which is applicable is well settled and has been recently thus stated in Thompson v. Gorman, 366 Pa. 242, 246, 77 A.2d 413, 416, 'The mere happening of an accident is no evidence of negligence. * * * Plaintiff has the two-fold burden of proving that the defendant was negligent and that his negligence was the proximate cause of her accident. * * *.'

'The defendant in this case was not an insurer; it owed to the plaintiff only the duty of reasonable care in the circumstances viz. to correct any unsafe condition which was discoverable by the exercise of reasonable care and diligence. Plaintiff had the burden of proving a defect or unsafe condition and that defendant had actual or constructive notice thereof. There was no evidence of actual notice. * * * 'What will amount to constructive notice of a defective or dangerous condition existing upon a defendant's premises, necessarily varies under the circumstances of each case. Some of the factors affecting the question, in addition to the time elapsing between the origin of the defect and the accident, ¹ are the size and physical condition of the premises, * * * and the opportunity which defendant, as a...