Appeal, No. 252, Jan. T., 1954, from judgment of Court of Common Pleas No. 3 of Philadelphia County, June T., 1952, No. 4465, in case of Pauline Katz v. John Wanamaker Philadelphia, Inc. Judgment reversed.
William T. Adis, with him Adis, McDermott & Suckle, for appellant.
Peter P. Liebert, III, with him John J. McDevitt, III, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The plaintiff, Mrs. Pauline Katz, sued John Wanamaker Philadelphia, Inc. in trespass to recover damages for injuries sustained as the result of a fall on a marble stairway in the defendant's store at 13th and Market Streets, Philadelphia. In her complaint plaintiff charged that her fall was due to defendant's negligence in permitting the stairway to remain in a "slippery, wet and slimy condition". The case was tried before a jury. At the conclusion of plaintiff's case the
defendant introduced no testimony and on its motion the trial judge directed a verdict for the defendant. Plaintiff's motion for a new trial was denied and judgment entered for the defendant from which plaintiff has taken this appeal.
The court below held that the evidence adduced by the plaintiff was insufficient to establish liability on the part of the defendant.
The testimony introduced on behalf of the plaintiff consisted of her own and that of her companion, Miss Lillian Parkman. On December 14, 1951 the two of them had left their place of employment, located about four or five blocks from the Wanamaker store, a little before 4 P.M. It had started snowing at about 1 P.M. and when they started out there were four or five inches of snow on the ground. Because it was difficult to get transportation on account of the storm, they walked to and entered the Wanamaker store on the Market Street side and proceeded through the first floor toward Chestnut Street. It was still snowing. The two women intended to do some telephoning and to make some purchases. On the 13th Street side of the first floor near Chestnut Street there is a marble stairway leading to the gallery and another marble stairway leading from the gallery to the basement. After using the telephone located partway down the first or upper stairway, the plaintiff descended to the gallery where she bought two small lamp shades and Miss Parkman continued to the basement where she bought a pair of galoshes. It was arranged that the two would meet in the basement near the restaurant which was close to the stairway. After making her purchases the plaintiff started down the stairway leading from the gallery to the basement and after proceeding three or four steps, slipped, fell and "rolled" down the stairway which was straight and contained from 20 to 25 steps.
Plaintiff testified that before descending the stairs she saw that they were wet and also saw footprints which looked muddy; that the steps "looked cleaner" on the right-hand side where there was a hand rail. She was carrying the two small lamp shades she had purchased and her coat in her left hand when she started down the steps. She testified: "Well, I got hold of the bannister and I started to walk down the stairs and I don't remember if I walked three, four steps as my foot went under me and shot out; and I had presence of mind to hold on to the railing not to fall down - and so I kept holding that railing - and what happened after that I don't know.". She was asked if she could state just what it was that caused her to fall and she answered: "Well, the only thing I can remember is that my foot shot out. How many steps I can't remember. But it shot out.". She was then asked: "Do you know what it was that caused your foot to shoot out, Mrs. Katz? Did you slip on the step or did you misjudge the step, what was it that caused your foot to shoot out?... A. I can only say that it was wet, that made my foot shoot out.". Plaintiff testified that when she was taken to the store dispensary she noticed that her dress was "all wet on the back and side". She testified that the steps on ...