Appeals, Nos. 125 and 126, Jan. T., 1952, from judgment of Superior Court, Oct. T., 1951, Nos. 154 and 155, affirming judgment of Court of Common Pleas No. 2 of Philadelphia County, March T., 1948, No. 1839, in case of Salvatore Lanni et ux. v. Pennsylvania Railroad Company. Judgment reversed.
H. Francis DeLone, with him F. Hastings Griffin, Jr., and Barnes, Dechert, Price, Myers & Rhoads, for appellant.
John J. McDevitt, 3rd, with him Peter P. Liebert, 3rd, for appellees.
Before Drew, C.j. Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE BELL
This appeal involves the question of whether plaintiff's proof of negligence was sufficient to take the case to the jury or, more particularly, whether the evidence of constructive notice was sufficient.
Plaintiffs brought an action of trespass for injuries to the wife-plaintiff which resulted from a fall on the station driveway of the defendant at North Philadelphia Station, Philadelphia. They alighted at North Philadelphia Station on September 8, 1946, at approximately 3:30 p.m. They walked from the station platform to one of the sidewalks just outside the station building. They then stepped from the sidewalk curb down onto the station driveway at a place where motor vehicles were very frequently driven and ofttimes stopped or parked. Mrs. Lanni's foot slipped upon a spot of oil or grease (hereinafter referred to as a grease spot) which was in the station driveway and she fell onto the driveway and suffered substantial injuries, for which the jury gave her a verdict. It is not clear from the testimony whether she stepped directly from the sidewalk onto the grease spot or whether her second
step was on the grease spot and for purposes of this case it is immaterial.
The testimony as to the grease spot was vague and contradictory, but since the question on this appeal is whether the defendant is entitled to judgment n.o.v., the testimony must be considered in the light most favorable to the plaintiffs and any conflict in the testimony must be resolved in their favor. Miller v. Pennsylvania R.R., 368 Pa. 507, 84 A.2d 200; McDonald v. Ferrebee, 366 Pa. 543, 79 A.2d 232. The grease spot was approximately one foot square and was covered with dust or dirt so that the plaintiff did not notice any danger. The driveway was dusty or dirty; the day was clear; there was no evidence whether it was calm or windy. There was likewise no evidence how thick the grease spot was and in particular there was no evidence how long it had been on the driveway. When Mrs. Lanni slipped, her heel left a mark through the entire length of the grease spot, but there were no other marks thereon which might have been made by other pedestrians.
Both the trial Court and the Superior Court were of the opinion that the jury could infer from the presence of dust or dirt which covered the grease spot that it must have existed a sufficient length of time to enable the defendant, in the exercise of reasonable care, to discover and correct the condition. This is the narrow question in the case.
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, "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 the accident: Houston v. Republican Athletic Association, 343 Pa. 218, 220,
A.2d 715; Reddington v. Philadelphia, 253 Pa. 390, 392, 98 A. 601; Erbe v. Philadelphia R.T. Co., 256 Pa. 567, 570, 100 A. 966; Martin v. Marateck, 345 Pa. 103, 106, 27 A.2d 42; Stauffer v. Rwy. Exp. Agency, 355 Pa. 24, 25, 47 A.2d 817."
Negligence is the absence or want of care which a reasonable man would exercise under the circumstances. Maternia v. P.R.R., 358 Pa. 149, 56 A.2d 233. We said in Miller v. Hickey, 368 Pa. 317, 325, 81 A.2d 910: "... negligence need not be proved by direct evidence, but may be inferred from attendant circumstances if the facts and circumstances are sufficient to reasonably and legitimately impute negligence: Rockey v. Ernest, 367 Pa. 538, 80 A.2d 783; Bills v. Zitterbart, 363 Pa. 207, 69 A.2d 78; Turek v. Pennsylvania R.R. Co., 361 Pa. 512, 64 A.2d 779; Randolph v. Campbell, 360 Pa. 453, 62 A.2d 60; Wright v. Straessley, 321 Pa. 1, 182 A. 682."
A jury is not permitted, however, to speculate or guess; conjecture, guess or suspicion do not amount to proof; DeReeder v. Travelers Insurance Co., 329 Pa. 328, 198 A. 45; Sharble v. ...