12. There was likewise no evidence as to how long the grease had been at the spot where plaintiff fell.
13. As a result of the fall, plaintiff suffered personal injuries.
14. The accident and resultant injuries suffered by the plaintiff were not the result of any negligence on the part of any of the defendants.
The point where plaintiff fell on the grease was in the intersection of Oakford Court and Poplar Street, both of which are public thoroughfares.
Furthermore, there was no evidence to show how the grease came to be where plaintiff fell, except that plaintiff testified that a heavy rainstorm the night before washed the gravel down Oakford Court to the spot where she fell. How she happened to learn this is somewhat vague, since she later testified that she had never walked across the track at the point where she fell before the day of the accident. The grease was covered with dust or dirt so that the plaintiff did not notice any danger. There was no evidence how thick the grease spot was and in particular there was no evidence how long it had been at the place where plaintiff fell.
'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 her accident. * * *' Thompson v. Gorman, 366 Pa. 242, 77 A.2d 413, 416.
Negligence is the absence or want of care which a reasonable man would exercise under the circumstances. Negligence need not be proved by direct evidence, but may be inferred from attendant circumstances if the facts and circumstances are sufficient to impute negligence reasonably and legitimately. Miller v. Hickey, 368 Pa. 317, 81 A.2d 910.
Plaintiff had the burden of proving a defect or unsafe condition and that defendants had actual or constructive notice thereof. There was no evidence of actual notice. There was likewise no evidence, facts, or circumstances which were sufficient to enable this Court to impute negligence reasonably and legitimately, i.e. constructive notice of the unsafe condition.
The Superior Court of Pennsylvania in Bremer v. W. W. Smith, Inc., 126 Pa.Super. 408, 191 A. 395, 397, has ably stated with respect to constructive notice:
'What will amount to constructive notice of a defective or dangerous condition existing upon a defendant's premises, necessarily varies under the circumstances of each case. Some of the factors affecting the question, in addition to the time elapsing between the origin of the defect and the accident, are the size and physical condition of the premises, the nature of the business conducted thereon, the number of persons using the premises and the frequency of such use, the nature of the defect and its location on the premises, its probable cause and the opportunity which defendant, as a reasonably prudent person, had to remedy it. * * *'
This Court has found that the place where plaintiff fell was not on the premises owned and occupied by the defendant, Morris White Fashions, Inc., and occupied by the defendant, Jewel Tea Company, Inc. but was between the rails of the defendant, The Delaware and Hudson Railroad Corporation. However, while the spot was covered with dust and gravel, there is not any evidence from which it could be reasonably and legitimately inferred what time elapsed between the accumulation of the defect and the accident. It is clear therefore that it could not be determined from any or all of the circumstances and at best it would only be a guess as to how long the grease was at the spot where plaintiff fell.
In Lanni v. Pennsylvania Railroad Co., 371 Pa. 106, 88 A.2d 887, decided by the Supreme Court of Pennsylvania in 1952, the facts were very similar to those in the instant case. The evidence as to the accumulation of dirt, gravel, and grease where plaintiff fell and the evidence as to what time elapsed between the accumulation of the defect and the accident was very similar to the evidence as to the same facts in the instant case and this Court has reached the same conclusion here as the Supreme Court of Pennsylvania did in Lanni v. Pennsylvania Railroad Co., supra, namely, that judgment should be entered for the defendant.
Conclusions of Law
1. This Court has jurisdiction of the parties and of the subject matter of the action.
2. The accident and resultant injuries suffered by the plaintiff were not the result of any negligence on the part of any of the defendants.
3. Judgment should be entered in favor of all defendants and against the plaintiff.
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