Smith v. American Stores Company

• Decision Date: 25 January 1945
• Parties: Smith et ux., v. American Stores Company, Appellant
• Court: Pennsylvania Superior Court

40 A.2d 696

156 Pa.Super. 375

Smith et ux., v. American Stores Company, Appellant

Superior Court of Pennsylvania

January 25, 1945

September 29, 1944, Argued

Appeals, Nos. 156 and 157, Oct. T., 1944, from judgments of C. P. No. 5. Phila. Co., March T., 1943, No. 620, in case of Philip A. Smith et ux. v. American Stores Company.

Trespass for personal injuries. Before Carroll, J.

Verdicts for wife plaintiff, in sum of $ 500, and for husband plaintiff, in sum of $ 500, remitted to $ 250, and judgments thereon. Defendant appealed.

Paul H. Ferguson, with him G. Mason Owlett, for appellant.

Samuel I. Sacks, with him Sacks & Piwosky, for appellees.

Keller P. J., Rhodes, Hirt, Reno and James, JJ. (Baldrige, J absent).

OPINION

Hirt, J.

In this action for damages from the wife's injury the jury found in favor of each of the plaintiffs. Judgment was entered for the wife and on the verdict for the husband in a reduced amount. Defendant in this appeal maintains that it is entitled to a new trial in any event, but more seriously contends that there is error in the refusal of judgments n. o. v. in its favor.

Defendant operates a number of markets selling meats, produce and groceries at retail, among them a store on Baltimore Avenue in Philadelphia. In the late afternoon of January 15, 1943, the wife-plaintiff went to the rear of this store. After making a purchase at the meat counter she proceeded in the aisle leading to the cashier's desk to pay for what she had bought. Many customers were in the store and the aisle was crowded. As she walked in the aisle between the produce and grocery counters she observed a piece of paper about a foot square, apparently flat on the floor. She had no reason to believe that it concealed a hazard. Under the paper there were carrot tops which caused her foot to slip as she stepped on the paper. She lost her balance and in falling her head struck the corner of a nearby box on the floor. There were a number of these boxes in the aisle supplied by the defendant for the use of an "order boy" in making deliveries to customers.

There is error in the charge of the court which in any view requires a new trial. The trial judge said to the jury that if "the defendant failed in its duty to keep the place in a reasonably safe condition, that there did exist there something which caused the female plaintiff to slip and fall, then your verdict should be for the plaintiffs." Although modified to some extent elsewhere in the charge, this virtually was an instruction imposing liability on defendant as an insurer of the safety of its patrons. In our view, however, there is error more fundamental than the refusal of a new trial; we think that the defendant under the law, clearly is entitled to judgment n. o. v. There is no suggestion that plaintiffs could produce additional evidence on a second trial.

In general, in an action arising from personal injury, the burden is on the plaintiff to prove the negligence of the defendant which caused it. And cases involving injury to an invitee of a storekeeper are no exception to the rule; res ipsa loquitur does not apply. This often is a heavy burden on a plaintiff even in a meritorious case. Cf. MacDonald v. Gimbel Brothers Inc., 321 Pa. 25, 183 A. 804. And although under some circumstances the difficulties of proof of negligence may be insurmountable, yet the rule has not been relaxed. A storekeeper is not liable except upon proof of the negligence of his servant or employee, chargeable to him, or of a dangerous condition of which he has had actual or constructive notice. His duty rises no higher than to keep his store in a reasonably safe condition and to remove hazards of which he has actual knowledge or which have continued long enough to charge him with constructive notice of their existence. Chapman v. Clothier, 274 Pa. 394, 118 A. 356; Reay v. Montgomery-Ward & Co., Inc., 154 Pa.Super. 119, 35 A.2d 558.

In the absence of proof that the defendant here had actual or constructive notice of the existing hazard, plaintiffs' right to recover must rest upon proof of a negligent act of an employee of defendant which set up the dangerous condition. Jann v. Linton's Lunch, 150 Pa.Super. 653, 29 A.2d 219, relied upon by plaintiffs is not controlling on this phase of the case. The Jann case did not turn on the issue of negligence but rather on the question whether an admittedly negligent actor was an employee of defendant. Here the testimony charges defendant with liability for the acts of the order boy, but the question remains whether the evidence is legally sufficient, under a construction most favorable to plaintiffs, to establish that the boy set up the hazard which caused the injury. Supporting proof of the boy's negligence must rest, if at all, upon what was said by the manager of the store immediately following the injury and the failure of the boy to reply. The wife-plaintiff testified that the manager said to the boy: "You ought to have better sense than to have things...