Appeal, No. 278, Jan. T., 1952, from order of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1950, No. 3941, in case of Jean Branch, Admrx., Estate of Elizabeth Sheridan, deceased, v. Philadelphia Transportation Company. Judgment reversed.
Benjamin Pomerantz, for appellant.
Bernard J. Smolens, with him Jay B. Leopold, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
This is an appeal from a compulsory non-suit entered by the court below against the plaintiff in a wrongful death action resulting from an accident which occurred in Philadelphia November 29, 1941, when Elizabeth Sheridan, plaintiff's mother, fell on a subway platform
owned and maintained by the defendant Philadelphia Transportation Company.
The cause of the fall was an act which has become more familiar in analogy, simile and cartoon than in actuality: Elizabeth Sheridan slipped on a banana peel. This proverbially slippery substance lurked amid the accumulation of trash trough which Mrs. Sheridan was compelled to proceed in order to board the subway car which was to take her to her destination.
A witness Emma Wells testified that after she and Mrs. Sheridan had paid their fares they sat on a bench on the platform and awaited the arrival of the street car. While attending at this point for 25 minutes, Mrs. Wells noted that the platform was encumbered with "a lot of litter, in other words, trash," and that during that time no one made any effort to clear away the rubbish. When the street car arrived, halting at this very point, Mrs. Sheridan advanced to board it, tramping on the intervening pile of papers, and slipped and fell. Mrs. Wells testified further that as Mrs. Sheridan lay on the platform, she, the witness, observed that adhering to Mrs. Sheridan's shoe was a banana peel.
The Trial Court, in entering the non-suit, said: "People are supposed to look where they are stepping." This statement would indicate that the learned Court missed the point in the case. There was no testimony that Mrs. Sheridan did not look where she was stepping. From all that was said at the trial, Mrs. Sheridan knew perfectly well where she was stepping. She stepped through the paper and trash in front of the trolley car entrance. There was no evidence that the banana peel was visible.
After the witness Wells had described the papers on the platform as "quite a pile," and that there "was a lot of trash," the ...