Frank J. Zappala, Francis A. Muracca, Pittsburgh, for appellant.
John H. Sorg, Wallace E. Edgecombe, Pittsburgh, for appellee.
Before Hirt, Acting P. J., and Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 276]
This action in trespass was brought by husband and wife for damages for personal injuries sustained by the wife-plaintiff, while a customer in defendant's department store, from a fall down stairs leading from the second to the first floors. The verdict of the jury, awarding husband and wife $200 and $800 respectively, was set aside by the granting of defendant's motion for judgment n.o.v., and the plaintiff have appealed.
The primary issue upon which liability depends is the question of constructive notice, and it was upon the determination of the court below that there had been no constructive notice to defendant that it granted judgment n. o. v.
On June 19 or 20, 1946, the wife-plaintiff (hereinafter referred to as the plaintiff) ascended the stairs of defendant's store from the first to the second floors. Questioned as to whether she had observed any defective condition of the stairs at that time she replied that
[ 168 Pa. Super. Page 277]
she 'just didn't notice anything, going up the steps'. As she descended the same stairs, she was carrying three parcels: a three-pound package of lunch meat, a dozen oranges and cover-alls which she had purchased on the second floor of defendant's store. In her testimony she described events immediately subsequent as follows: 'I had both arms filled with packages, and as I was coming down when I got to about three steps before the platform I got my foot caught in the stripping, the front part of my foot, the toe; and when I got my foot caught in the stripping, the lower part of my shoe, I lost my balance and fell forward, trying to hold my bundles, and falling, it seemed like my foot went down, it seemed like the step wasn't there. The step was low and slanted to the left. That was what threw me over and I went all the way down the stairs. Q. You say you stepped on a stripping. How do you know that fact? A. I felt it, when I got my foot caught.' She testified further that after she fell she landed on the first floor and 'hit the corner of one of the tables * * * nearby the stairway', was helped to her feet and otherwise assisted by employes of defendant, that the superintendent was called, that she did not return to inspect the stairs to see what had caused her to fall, but because of embarrassment she 'just wanted to rush out of the store', and that she left for home within five or ten minutes, walking out without any assistance.
The plaintiff-husband, 'three or four days' later, went to defendant's store for the purpose of inspecting the stairs 'to see the defect, how she fell', and tested them by placing his foot down heavily on them. He testified that he found the linoleum on the stairs 'awful humpy; it was uneven in spots, and it would sink down when stepped on'. He 'noticed the stripping was above the linoleum in many places on the steps * * * [The linoleum] wasn't firmly fastened to the floor or the steps * * * when you stepped on it, it went down.' On
[ 168 Pa. Super. Page 278]
cross-examination, in answer to the question, 'You observed the stripping was elevated in places, and that stripping, you don't know whether it was on this particular step or not, do ...