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HESS v. SUN RAY DRUG CO. (12/29/56)

December 29, 1956

HESS, APPELLANT,
v.
SUN RAY DRUG CO.



Appeal, No. 354, Jan. T., 1955, from judgment of Court of Common Pleas No. 5 of Philadelphia County, June T., 1952, No. 417, in case of Lulu H. Hess v. Sun Ray Drug Co. Judgment affirmed. Trespass for personal injuries. Before KUN, P.J. Compulsory non-suit entered; plaintiff's motion to take off non-suit refused and final order entered. Plaintiff appealed.

COUNSEL

Thomas S. Howland, with him Melling & Howland, for appellant.

Perry S. Bechtle, with him Thomas E. Comber, Jr., for appellee.

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

[ 387 Pa. Page 199]

OPINION PER CURIAM

This is an appeal from a judgment of non-suit in an action of trespass. The judgment is affirmed on the following excerpts from the able opinion of President Judge KUN:

[ 387 Pa. Page 200]

"The evidence in plaintiff's case was rather meagre. It consisted of her own testimony, as follows: On direct examination plaintiff testified that on August 25, 1951, she was about to enter the Sun Ray store located at Frankford Avenue and Orthodox Street, in the City of Philadelphia. She noticed a stand in the entranceway where a clerk was dispensing orange juice, with about eight or nine people standing in front of it. The stand was on the left hand side of the entranceway, and there were doors on both sides of the entranceway. She was about to enter ... by the left hand door, which was nearer the stand. She described the happening of the accident, as follows: 'Then these children were there and they were evidently fooling. They were laughing and fooling, all these young people, and I slipped and fell on the - ' ['Q. As you slipped what happened? A. I wanted to get a hold of the door to go in and just as I did that, I slipped and fell. Q. What part of your body was hurt? A. My arm or my wrist. I fell right on my hand and I felt a very severe pain in my right arm after I fell. Q. Did you observe anything else after you fell? A. Well, I noticed that my clothing was all full of this orange juice.'] After the fall, she noticed orange juice stains upon her clothing. On cross-examination, plaintiff testified that she was not carrying anything at the time of the accident, that she was not looking at the ground but was looking for the door. It was upon the basis of this testimony that the non-suit was entered.

"The applicable principles of law with respect to the question of negligence are well settled. Plaintiff was a business visitor upon the premises of defendant, which owed her the duty of keeping the premises reasonably safe and of correcting any unsafe condition which was discoverable by the exercise of reasonable

[ 387 Pa. Page 201]

    care and diligence. Defendant, however, was not an insurer, and therefore the mere happening of an accident did not impose liability upon it. Parker v. McCrory Stores Corp., 376 Pa. 122. In order for plaintiff to recover, it was incumbent upon her to prove that the condition of which she complained was the result of the direct negligence of an employee of defendant, or that defendant had sufficient constructive notice of the defect to have enabled it to correct that defect. Lanni v. Penna. R.R. Co., 371 Pa. 106.

"In this case all that we have with respect to the happening of the accident is that plaintiff slipped, and after she fell, noticed orange juice stains upon her clothing. There is no evidence as to how the orange juice got on the floor and, therefore, we could not have permitted a jury to speculate that it got there through the direct negligence of defendant's employee. And if the speculation were permitted that the orange juice was spilled by a customer, there is nothing in the evidence as to how long it remained on the floor prior to the accident.

"This case is ruled by Lanni v. Penna. R.R. Co., supra, wherein plaintiff slipped on a grease spot on defendant's premises. There was testimony that the grease was covered with dust or dirt. The Superior Court (170 Pa. Superior Ct. 81) held that the jury could have inferred from the existence of the dust or dirt that the grease had been upon defendant's premises for a sufficient period of time to have constituted notice to the defendant. The Supreme Court reversed the Superior Court and held that there was not sufficient evidence of constructive notice, stating, at p. 112: '... it would ...


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