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MACALADY v. WHELAN DRUG COMPANY (11/16/55)

November 16, 1955

MACALADY, APPELLANT,
v.
WHELAN DRUG COMPANY, INC.



Appeal, No. 172, Oct. T., 1955, from judgment of Court of Common Pleas No. 1 of Philadelphia County, March T., 1953, No. 9304, in case of Grace I. Macalady v. Whelan Drug Company, Inc. Judgment affirmed.

COUNSEL

William F. Quinlan, for appellant.

John Paul Erwin, with him James Paul Dornberger and George D. Sheehan, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Wright

[ 179 Pa. Super. Page 564]

OPINION BY WRIGHT, J.

Grace I. Macalady instituted an action in trespass against Whelan Drug Company, Inc. After a verdict in favor of plaintiff, the lower court granted defendant's motion for judgment n.o.v. This appeal followed.

Appellee operated a drug store at Germantown and Chelten Avenues in the City of Philadelphia. The lobby entrance to the store was recessed approximately ten feet from the building line, with the side walls of the lobby constructed of curved glass display windows. In the center of the lobby appellee placed a white weighing scale approximately four feet high. This scale had a black base, the rear feet of which extended out slightly from the sides. The sides themselves extended out a similar distance near the top of the scale. On the afternoon of Saturday, September 29, 1951, appellant entered the store to make a purchase. She had been in the store frequently. She knew the scale was

[ 179 Pa. Super. Page 565]

    there. She saw it on her way in. Appellant testified that, when she left the store, there were some thirty or forty people "milling around" in the lobby area and looking in the display windows. Appellant again observed the scale, attempted to go around it without looking down, and tripped over the feet at the bottom.

Appellant's statement of the question involved is as follows: "Did the learned trial judge err in entering judgment n.o.v. on the theory that the uncontradicted evidence offered on behalf of the plaintiff failed to establish defendant's negligence and did, as a matter of law, convict the plaintiff of contributory negligence".

The following language of the Supreme Court in Burckhalter v. Woolworth Co., 340 Pa. 300, 16 A.2d 716, is particularly appropriate: "The burden of establishing actionable negligence was upon plaintiffs, since its presence was not to be presumed from the mere fact that the injury was caused by a fall at the entrance of the store ... In this connection the law is well-settled that the owner of land upon which persons come by invitation, express or implied, must maintain it in a reasonably safe condition for the contemplated uses and the purposes for which the invitation was extended, or to give warning of any failure to maintain them in that condition ... It cannot be said, however, that the mere placing of a large platform scale in the entrance of a store involved an unreasonable risk to customers ... This tall white object, of large proportions, so very close at hand, in broad daylight, could not have gone unnoticed by anyone paying attention when passing it". In ...


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