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SLOSS v. GREENBERGER. (07/02/59)

July 2, 1959

SLOSS, APPELLANT,
v.
GREENBERGER.



Appeal, No. 109, March T., 1959, from judgment of Court of Common Pleas of Mercer County, June T., 1958, No. 101, in case of Edward R. Sloss et ux. v. Lester Greenberger, trading as Southside Korner Market. Judgment affirmed. Trespass for personal injuries. Before RODGERS, P.J. Involuntary non-suit entered against plaintiffs; motion to take off non-suit denied and judgment entered for defendant. Plaintiffs appealed.

COUNSEL

Albert E. Acker, with him Wiesen, Cusick, Madden, Joyce, Acker and McKay, for appellants.

Cyril T. Garvey, with him Thomas H. Armstrong, and Evans and Garvey, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Bell

[ 396 Pa. Page 354]

OPINION BY MR. JUSTICE BELL

Plaintiffs' motion to take off a non-suit was dismissed, and from the Judgment of non-suit plaintiffs have appealed. It is, of course, hornbook law that plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence, and all conflicts therein must be resolved in his favor: Seburn v. Luzerne and Carbon County Motor Transit Co., 394 Pa. 577, 148 A.2d 534; Finnin v. Neubert, 378 Pa. 40, 105 A.2d 77; Lewis v. Quinn, 376 Pa. 109, 101 A.2d 382.

Reviewing the testimony in the light most favorable to the plaintiffs, the following facts were established. Plaintiff, Helen Sloss, and her granddaughter entered defendant's store, known as Southside Korner Market. Defendant's store is a self-service supermarket. After selecting a cart and shopping for a time, Mrs. Sloss left her shopping cart to go to another part of the market in order to speak to Mr. Reyer, a friend. While speaking to Mr. Reyer, Mrs. Sloss turned to her right to go toward Mrs. Reyer. As she turned she took one step along the aisle and "the toes of my left foot*fn* became caught in this object which felt like wire on my

[ 396 Pa. Page 355]

    leg and I immediately fell ...". It was argued that she caught her foot in one of the wire baskets which occupied two rows of store space which were placed on one side of the aisle, upside down with produce on the top. These baskets were in plain sight of everyone; their height, width and position were obvious to all, there was nothing to obstruct Mrs. Sloss' vision; and while the baskets extended into the aisle, there was ample room to walk around them.

Plaintiff's contention that she did not walk into the basket, but rather that she caught her toes on a piece of wire jutting out from the basket, is utterly unsupported by the evidence; and there is absolutely no adequate proof of negligence on the part of defendant. It is normal, and certainly not improper, practice for supermarket operators to use part of the aisle for sale or display purposes, and it is impossible to find anything dangerous or even improper or unreasonable in the present display.

Even if there were evidence to prove that a piece of wire jutted out from the basket, defendant is not an insurer, and plaintiffs could not recover because they failed to prove defendant had actual or constructive knowledge of this condition. Moreover, even assuming, arguendo, that a jury could find that defendant was negligent under plaintiffs' evidence, it is clear that plaintiff was contributorily negligent. When plaintiff walked into one of a row of baskets in clear sight in a wide, well lighted aisle, with nothing to obstruct her vision, she certainly failed to exercise that degree of reasonable care which the law demands.

In Druding v. Philadelphia, 374 Pa. 202, 97 A.2d 365, where this Court entered judgment for defendant non obstante veredicto because of plaintiff's contributory negligence, the Court said (page 204): "'No ...


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