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STROUT v. AMERICAN STORES CO. (05/21/56)

May 21, 1956

STROUT
v.
AMERICAN STORES CO., APPELLANT.



Appeals, Nos. 94 and 95, Jan. T., 1956, from judgments of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1953, No. 1706, in case of Loren A. Strout et ux. v. American Stores Co. Judgments affirmed; reargument refused June 11, 1956.

COUNSEL

George D. Sheehan, with him John Paul Erwin, for appellant.

Bernard I. Shovlin, for appellees.

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

Author: Musmanno

[ 385 Pa. Page 231]

OPINION BY MR. JUSTICE MUSMANNO

What degree of care does a store owner owe the patrons of his establishment? This question was definitively answered with ample authority in the case of Vetter v. Great A. & P. Co., 322 Pa. 449, 454, where we said: "Mr. Justice SIMPSON, in Nettis v. Gen. Tire Co., 317 Pa. 204, 209, said: 'All the authorities agree 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 ...' (citing cases). To the same effect we recently held in Kulka v. Nemirovsky, 314 Pa. 134, 139: 'Defendant owed to the plaintiff the affirmative duty of keeping his premises reasonably safe for business visitors, such as plaintiff, and of giving warning of any failure to maintain them in that condition ...' (citing cases)."

In the case before us for consideration, Mrs. Florence E. Strout entered a grocery market of the American Stores Company in Norristown and proceeded through a turnstile to a counter where she purchased a ten-pound bag of potatoes. When she had taken only four steps away from the counter, her feet flew from under her and she fell to the floor to the accompaniment of injuries which one doctor described as: "transverse fracture of the distal sacral segment with the fragments approximated and some dorsal angulation at the fracture site." In an attempt to transmute these medical

[ 385 Pa. Page 232]

    terms into lay language the doctor employed a phraseology which could almost seem to describe a boulevard. He said: "The sacrum comes around here in a curve, normally, and it comes to almost a dead end here at the fracture site and then goes off in another direction, the portion of the bone beyond the fracture." For these injuries Mrs. Strout recovered a verdict of $5,000 (with her husband receiving an additional $800) which the lower Court reduced to $3,000. An appeal followed to this Court when the defendant's motions for judgment n.o.v. and new trial were refused.

The area of the floor which marked the scene of Mrs. Strout's mishap revealed an oily and gummy patch in which Mrs. Strout's heel left an indentation some 12 to 14 inches in length and about 1/4 inch in depth. The floor had been waxed 2 1/2 hours prior to the accident. The plaintiff's daughter testified: "Q. Did you notice the condition of the floor at the spot where your mother fell? A. Yes. The area didn't look dry. It looked gooey. You could see the indentation of her heel mark in the wax. I would say the indentation was anywhere from an eighth to a quarter of an inch thick, where she went down. Q. You mean indentation of the wax was a quarter of an inch thick? A. That is what I mean, yes. Q. You said it looked gooey. What did you mean by 'gooey'? A. Oily, gummy. Q. Oily and gummy? A. Yes. I don't know how else you can describe wet floor wax."

The defendant contends that since it was not established that the wax had been improperly applied, the plaintiffs (wife and husband) failed to make out a case of negligence, citing Bowser v. Penney Co., 354 Pa. 1, in support of that contention. It is true that we did say there that "it is not negligence per se on the part of an owner to wax or oil his floors", but we also said: "that the ...


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