Appeals, Nos. 6 and 7, March T., 1955, from judgments of Court of Common Pleas of Allegheny County, Jan. T., 1952, No. 791, in case of Mary Diakolios et vir v. Sears, Roebuck & Company. Judgment reversed; reargument refused December 29, 1956.
Harvey E. Schauffler, Jr., for appellants.
Kim Darragh, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
This is an action of trespass for injuries suffered by wife-plaintiff in a fall in defendant's store while a business visitor therein. The jury returned a verdict for plaintiffs, but on defendant's motion the court below entered judgment for defendant n.o.v. Plaintiffs appeal.
The verdict having been for plaintiffs, it is the well established rule that the testimony and all its inferences must be viewed in a light most favorable to them. The court below recognized this rule, but improperly concluded that plaintiffs failed to establish defendant's negligence as the proximate cause of the wife-plaintiff's fall, and also that she was guilty of contributory negligence.
The jury was well warranted in finding the following facts: Wife-plaintiff, accompanied by a friend, went to defendant's store in the city of Pittsburgh to make purchases. They entered on the first floor and proceeded to the second floor by means of an escalator. Having reached the second floor, they walked to the curtain counter, and in doing so passed the descending escalator. Both then saw a six inch spot "like grease and oil" at a point approximately six inches from the top of the escalator. After they made their purchases they "shopped around" the floor for approximately an hour or more, and then returned to the descending escalator to leave. Each again saw the spot of grease. The wife-plaintiff attempted to avoid the
grease by stepping around it, and in doing so she failed to see a banana skin lying nearby. Her right foot slipped on the banana peel, causing her partially to lose her balance. She succeeded in grasping the bannister to regain her balance but as she did so her left foot came in contact with the greasy substance, which caused her to pitch forward and down the escalator. Plaintiffs' testimony was that she could not and did not see the banana peel because her attention was fixed upon the grease and oil which she tried to avoid. The circumstances as to how or when the banana peel was put where it was, or exactly where it had been in relation to the grease, were not shown. The testimony showed only that after she slipped on it, the peel was about one-half foot away.
It was shown that there was no passenger elevator service; and whether or not there were stairways or any other means of egress or descent does not appear. No attempt was made to establish their existence, either by plaintiffs or by defendant.
The court below, although it had submitted the case to the jury under proper instructions, concluded that judgment should be for defendant for the reasons heretofore stated. But its error lies in not giving ...