Howard R. Detweiler, Frank R. Ambler, Philadelphia, for appellant.
Robert Boyd, Jr., Philadelphia, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 82]
Patrick DeElse and Yolanda DeElse, appellees, instituted this action in trespass against Wilf Brothers Appliances, appellant, for injuries sustained to the wife when she stepped on a broken glass jug in front of appellant's premises. A jury returned verdicts for both appellees and this appeal is from dismissal of appellant's motions for judgment n. o. v. and for a new trial.
On February 19, 1948, about 2:00 p. m., wife-appellee stepped out of an automobile which was stopped at or near the curb in front of appellant's business premises. She looked down at the ice and snow which had accumulated on the pavement near the curb, saw nothing
[ 168 Pa. Super. Page 83]
that appeared to her to be other than ice and snow, and then stepped down into the base or bottom of a broken glass jug. As a result, she cut her right foot causing injuries for which this action was instituted.
Appellant's main contention is that the court below erred in refusing its motion for judgment n. o. v. in that appellant, as a matter of law, was not chargeable with constructive notice of the presence of the glass. Appellees made no effort to prove actual knowledge, but relied on the doctrine of constructive notice, viz., that the broken glass should have been apparent to appellant upon reasonable inspection. Wife-appellee described what she saw as follows:
'Q. Could you see the curb where you stopped? A. No, I could not see it.
'Q. When you opened the door you looked down where you were going ...