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BOZARTH ET VIR v. PENN FRUIT COMPANY ET AL. (09/11/58)

September 11, 1958

BOZARTH ET VIR, APPELLANTS,
v.
PENN FRUIT COMPANY ET AL.



Appeals, Nos. 102 and 103, Oct. T., 1958, from order of Court of Common Pleas No. 3 of Philadelphia County, March T., 1955, No. 4082, in case of Etta Bozarth et vir v. Penn Fruit Company et al. Order reversed.

COUNSEL

Mary Alice Duffy, with her Gerber & Galfand, for appellants.

Norman R. Bradley, with him Ralph S. Croskey, for appellees.

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

Author: Watkins

[ 187 Pa. Super. Page 219]

OPINION BY WATKINS, J.

This is an action in trespass for injuries suffered by Etta Bozarth, the wife appellant, in a fall on a defective pavement and by Alexander Bozarth, the husband appellant, for loss of consortium. The injuries were sustained on August 14, 1954 on the North side of Lehigh Avenue between 21st and 22nd Streets in Philadelphia. The case was tried before the late Judge CRUMLISH and the jury returned a verdict for the appellant wife in the amount of Thirty-five Hundred ($3500) Dollars and for the appellant husband in the amount of Four Hundred Fifty ( $450) Dollars. A motion for a new trial was granted the appellee by the court below, "for the unequivocal development of facts and their submission to the jury under proper instructions." Hence this appeal.

The defendants in this case were Penn Fruit Company, occupying the first floor of the building fronting the pavement, and G. L. P. Company, the owner of the land and property where the appellant fell. On motion of the defendant, Penn Fruit Company, a compulsory non-suit was granted on the ground that the primary responsibility for the maintenance of a multiple tenancy

[ 187 Pa. Super. Page 220]

    rests with the owner. The appellants do not complain of this ruling.

A careful examination of the record would warrant a jury in finding the following facts: On Saturday, August 14, 1954 the Phillies were playing the Pittsburgh Pirates in the Connie Mack stadium, which is located at 21st and Lehigh Ave., Philadelphia, Pennsylvania; that the appellant wife is a scrub woman, age 46, and was employed part time as a counter woman at the baseball park; that she had been so employed for 3 years; that the game was over at about 4:15 to 4:30 in the afternoon; that the appellant left with the crowd after the game; that she was walking with the crowd on the pavement on the North side of Lehigh Avenue, between 21st and 22nd Streets in front of the appellee's property outside the Penn Fruit store; that she had knowledge that there were holes in the pavement; that the appellee had notice of the condition of the pavement; that because of the crowd and the condition of the pavement she attempted to watch both the pavement and the people to avoid jostling them or being jostled; that she saw a large hole and sidestepped it and then her foot came into a smaller L-shaped hole, which she was unable to see because of the people in front of her, and which caused her fall and injuries.

Judge SLOANE in his opinion setting forth the reasons for granting a new trial, cited Cooper v. Philadelphia, 178 Pa. Superior Ct. 205. In that case, Judge HIRT, at page 210 said: "In this case the majority of us are of the opinion that a new trial well might have been granted in the court below for an unequivocal development of the facts and their submission under proper instructions." We cannot agree that the ...


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