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BURTON v. HORN & HARDART BAKING CO. (05/29/52)

May 29, 1952

BURTON, APPELLANT,
v.
HORN & HARDART BAKING CO.



Appeal, No. 165, Jan. T., 1952, from judgment of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1949, No. 3901, in case of Sylvia Burton v. Horn & Hardart Baking Co. Judgment affirmed.

COUNSEL

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

John J. McDevitt, 3rd, with him Peter P. Liebert, 3rd, for appellee.

Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Chidsey

[ 371 Pa. Page 61]

OPINION BY MR. JUSTICE CHIDSEY

This is an appeal from a decree by the Court of Common Pleas of Philadelphia County refusing to take off a non-suit in a trespass action for personal injuries.

Plaintiff, a 76 year old woman at the time of the accident, slipped as she was going down the steps leading to the ladies' room in one of defendant's restaurants. The accident occurred on November 21, 1949, about 11:20 a.m.

[ 371 Pa. Page 62]

The steps were 44 inches wide and after a series of three steps there was a landing and a number of steps leading to the basement and the ladies' room. These steps had handrails on both sides and were well lighted. The plaintiff and her daughter testified that, after reaching the landing, the plaintiff slipped on the top step of the second series. At the time plaintiff slipped she had hold of the railing on her right side, her daughter was supporting her left arm and also holding onto the railing on the other side.

The only testimony relied on to hold the defendant liable is as follows: Plaintiff testified, "... I step a little bit and after this I step with the left foot on the step, and I step the first step, and I don't know what's the matter; it was slippery, I don't know, and I fell down." And again she said, "Maybe it was a little bit slippy, the steps." Her daughter testified, "... I saw that the steps were wet, as though they had just been wiped down." When asked to describe the wet condition of the steps, she replied, "Well, I would say when I would wipe my steps down, you know, with a wet cloth, wash them down, they were wet; it wasn't pails of water, anything like that on them; it was just, you know, as though they had just been wiped down." She further said, "I would say something like slightly wet; damp wouldn't be wet enough."

Thus, in summary, all that plaintiff's evidence established was that she slipped on steps that were slightly wet, apparently because they had just been washed. The words of Mr. Chief Justice DREW (then Mr. Justice DREW) in Bowser et ux. v. J. C. Penney Company, 354 Pa. 1, 46 A.2d 324, state the general rule, at p. 4: "The real question is not whether there was an improper application but whether such alleged improper application created a condition so obviously dangerous as to amount to evidence from which an inference

[ 371 Pa. Page 63]

    of negligence would arise:". In this case there ...


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