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ROGERS v. HORN & HARDART BAKING COMPANY (12/28/56)

December 28, 1956

ROGERS
v.
HORN & HARDART BAKING COMPANY, APPELLANT.



Appeal, No. 99, Oct. T., 1956, from judgment of Municipal Court of Philadelphia County, June T., 1954, No. 615, in case of Frank A. Rogers v. Horn & Hardart Baking Company. Judgment reversed.

COUNSEL

John J. McDevitt, 3rd, with him Bernard J. Smolens, for appellant.

John A. M. McCarthy, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).

Author: Carr

[ 183 Pa. Super. Page 84]

OPINION BY CARR, J.

This appeal is from an order of the court below refusing defendant's motion for judgment n.o.v. after a

[ 183 Pa. Super. Page 85]

    verdict in favor of the plaintiff for personal injuries sustained from a fall on the floor of the defendant's restaurant. The appellant contends that appellee did not produce sufficient evidence of negligence.

From the record it appears that Frank A. Rogers, the appellee, entered the cafeteria-style restaurant of Horn & Hardart, the appellant, at 1508 Market Street, Philadelphia and purchased some food which he carried to a table. He then returned to the counter to make an additional purchase. As he approached the cashier's cage he suddenly slipped and fell, striking his head on the floor.

No evidence was presented by defendant, and the only witness as to negligence was the appellee himself. We quote the pertinent part of his testimony: "Q.After you were on the floor did you know or did you find out what caused you to fall? A. Yes, sir, some soup or stew or something, because I had it on my clothing. Q. Did you see that on the floor or not? A. No, sir. Q. Did you see it at any time after you fell? A. No, sir. Q. Did you say you had it on your clothing? A. That's right. Q. What sort of a spot did it leave on your clothing? A. It left a greasy spot. I think it was the shell of a pea on my coat and a piece of carrot. It looked like a carrot. It was a yellow substance. Q. How big of an area of your coat did that cover? A. I would say about four or five inches. Q. Four or five what? A. On my clothing. Q. You mean across or around? A. A round circle. Q. Did you have that on your clothing prior to the time you fell? A. No, sir, and I didn't notice it until I got home. My wife said: 'You got this stuff on your coat,' and there was a little bit on my shoulder, too. How it got there, I don't know." (Emphasis added).

[ 183 Pa. Super. Page 86]

It is a fundamental principle of all negligence actions for personal injuries that the burden is on the plaintiff to prove by a preponderance of the evidence that the defendant was negligent and that such negligence was the proximate cause of plaintiff's injury. The mere happening of an accident is not evidence of negligence. Although there are a few exceptions, injury to an invitee of a ...


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