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CROSS v. LABODA ET UX. (07/06/59)

July 6, 1959

CROSS
v.
LABODA ET UX., APPELLANTS.



Appeal, No. 2, April T., 1959, from judgment of Court of Common Pleas of Fayette County, Sept. T., 1956, No. 536, in case of Ephriam L. Cross v. Charles Laboda et ux., trading and doing business as Charles Restaurant. Judgment affirmed.

COUNSEL

Henry R. Beeson, with him Higbee, Lewellyn & Beeson, for appellants.

E. D. Brown, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Watkins

[ 190 Pa. Super. Page 120]

OPINION BY WATKINS, J.

This is an appeal by Charles Laboda and Catherine Laboda, his wife, trading and doing business as Charles Restaurant, the appellant, from the judgment of the Court of Common Pleas of Fayette County, in the amount of $5000 in favor of Ephriam L. Cross, the appellee, in an action of trespass.

The action grew out of injuries sustained by the appellee in the Charles restaurant. On November 19, 1954, Cross entered the Charles restaurant, ordered a glass of beer at the bar and then went to the rest room.

[ 190 Pa. Super. Page 121]

On his return, the glass of beer and his stool had been moved from the bar to a table four or five feet from the bar where friends were sitting. He then sat on the stool, placing his feet on the rungs of the stool when the seat came loose and he and the seat fell backwards to the floor. He fell on his back and head and as a result was paralyzed and unable to use his hands and legs. He saw the seat of the stool lying on the floor and immediately stated to one of the witnesses, "Earl the stool broke with me, I am done." The medical witnesses testified that he was totally incapacitated.

Charles Laboda was not in the room at the time of the accident but Catherine Laboda testified that she had served the beer and that no inspection had been made of the stool. It was a steel stool with four legs, with a circular band around them about a foot from the floor. The seat was a revolving one attached to the stool and not removable.

The appellant did not produce any evidence as to the construction and quality of this stool or regarding their inspection of the stool. Despite this, the court below granted the appellant's request for an instruction that "Unless you find that defendants knew or should have known that the stool was defective, your verdict must be for the defendants." The jury brought in a verdict of $5000. The appellant's motion for judgment n.o.v. was refused by the court en banc.

This case falls clearly within the principle that care must be exercised by an innkeeper to see that his patrons or guests are protected from injury. Tamres v. Reed, 109 Pa. Superior Ct. 28, 165 A. 538 (1933); Poulos ...


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