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MORRIS v. ATLANTIC AND PACIFIC TEA COMPANY (03/13/56)

March 13, 1956

MORRIS
v.
ATLANTIC AND PACIFIC TEA COMPANY, APPELLANT.



Appeals, Nos. 48 and 49, Jan. T., 1956, from judgments of Court of Common Pleas of Delaware County, June T., 1954, No. 1755, in case of Francis B. Morris et ux. v. Atlantic and Pacific Tea Company. Judgments affirmed.

COUNSEL

D. Malcolm Hodge, with him Hodge, Hodge & Cramp, for appellant.

Douglas D. Royal, with him Greenwell & Porter, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Musmanno

[ 384 Pa. Page 465]

OPINION BY MR. JUSTICE MUSMANNO

The only subject for consideration on the appeal in this case is whether the jury should have been permitted to pass on the questions of negligence and contributory negligence. It is clear from the record that the factual issues involved were strictly for the jury.

On January 10 and 11, 1954, a heavy snow (8 inches) fell in and around Bryn Mawr, Montgomery County. Tow days later a temporary thaw set in and this was followed by a freezing temperature which solidified and corrugated the snow, slush and small pools of water into a rough, icy carpet of ruts, ridges and mounds 3 to 4 inches high. On January 14th, at about 11 a.m., Mrs. Eleanor Morris, the plaintiff, emerged from the defendant's store with a push cart laden with the groceries she had purchased. Her husband's car was located at a distant corner of the defendant's parking lot, which held some 50 cars, and she proceeded toward it, pushing the cart before her. Arrived at the car she reached out to open the door when, as she described it, "my feet slipped off a rut, a ridge down into a rut and caused me to fall."

She and her husband brought suit against the Atlantic & Pacific Tea Company for the damages they

[ 384 Pa. Page 466]

    both sustained, and recovered verdicts. The defendant asks for judgment n.o.v., urging that no negligence was established on its part and that the wife-plaintiff's case revealed contributory negligence. This Court has said repeatedly that "it is incumbent upon the owner of premises upon which persons come by invitation, express or implied, to maintain such premises in a reasonably safe condition for the contemplated uses thereof and the purposes for which the invitation was extended."*fn*

In Dalgleish v. Oppenheim, Collins, 302 Pa. 88, the plaintiff was injured when she stopped on a rubber mat which shot out from under her feet, with resultant injuries to her. In sustaining the verdict returned for the plaintiff, we said: "It is, of course, a storekeeper's duty to use ordinary care to protect a customer from harm. (citing cases) Whether it did so, in the instant case, depended on the facts as the jury found them."

Did the defendant storekeeper here use ordinary care in protecting Mr. Morris from harm? The defendant was fully aware of the icy conditions surrounding its store. Although there was evidence that it attempted to clear the parking lot of the snow which fell on January 10th and 11th, by using a snow plow, it was denied by plaintiffs' witnesses that this cleansing process was an efficacious one. In any event it is clear that any attempts made by the defendant to reduce the hazards underfoot were of small avail ...


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