Appeal, No. 185, Jan. T., 1952, from order of Court of Common Pleas of Luzerne County, December T., 1948, No. 460, in case of Helen Jerominski v. Fowler, Dick & Walker. Order reversed.
Thomas C. Moore, with him John R. Verbalis and J. Leonard Langan, for appellant.
William S. McLean, with him Shortz, James & McLean, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE MUSMANNO
On January 19, 1948, at about 12:30 p.m., the plaintiff Helen Jerominski, while descending a stairway between the fourth and third floors of the defendant's department store, fell and was injured. At the ensuing trial of the suit in trespass filed by her against the owners of the store, she testified that her foot came into contact with an oily or greasy substance on the
third or fourth step of the stairway and this caused her to slip, and being unable to recover balance, she was precipitated to the bottom of the 22 step stairway.
At the termination of the plaintiff's case the lower court entered a non-suit which it refused later to take off. From this refusal an appeal was taken to this Court.
One witness called by the plaintiff, a Mrs. Hoyt, testified that at 10:15 the morning of the accident she observed a "white substance about 3 inches in diameter that looked like "cream oil" about half way down the steps and that during the next one and one-half hours she noted this foreign substance twice again. At 12:30 she witnessed the plaintiff step on to the grease spot (half way down the stairway,) and fall.
The learned court below regarded this discrepancy between the testimony of the plaintiff and the testimony of Mrs. Hoyt (as to the location of the grease spot) as a fatal one, ignoring the proposition that a plaintiff on the witness stand being, after all, only a witness, may err in narrating the details of any transaction, as can anyone else. Whether the error or slip of memory is of such proportion as to challenge the plaintiff's honesty or accuracy regarding the very subject matter of the litigation is for the jury to determine. There is no law that requires the victim of a fall to count the steps as he or she tumbles to serious injury. In the natural excitement, apprehension and even terror of an unimpeded, helpless plunge down a steep flight of steps, the victim could hardly be held to a precise recollection as to whether the exact beginning of the violent descent occurred on ...