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GARBER v. GREAT ATLANTIC & PACIFIC TEA COMPANY (11/09/59)

November 9, 1959

GARBER
v.
GREAT ATLANTIC & PACIFIC TEA COMPANY, APPELLANT.



Appeal, No. 110, March T., 1959, from judgments of Court of Common Pleas of Allegheny County, April T., 1955, No. 2931, in case of Elizabeth Garber et vir. v. The Great Atlantic & Pacific Tea Company. Judgments affirmed. Trespass for personal injuries. Before BROWN, J. Verdicts entered for wife plaintiff in amount of $10,000, and for husband plaintiff in amount of $2,500; defendant's motions for judgment n.o.v. and for new trial refused and judgments entered on the verdicts. Defendant appealed.

COUNSEL

John David Rhodes, with him Pringle, Bredin & Martin, for appellant.

P. J. McArdle, with him James R. Fitzgerald, for appellees.

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

Author: Bok

[ 397 Pa. Page 324]

OPINION BY MR. JUSTICE BOK

Plaintiff, with her mother and children, was shopping in defendant's self-service store in Clairton, Allegheny County. She was standing by a display of cans of Wesson oil mounted on a shelf twelve inches from the floor. The cans, stacked three high atop one another, were each ten inches in height, making the stack about thirty inches high.

She was the only person near the display, her children and mother being at a little distance, and she was standing in the center of the aisle. While she was there a can, which held a gallon and weighed six pounds, fell on her foot. It fell about three feet because after the accident the cans in the display were seen to be symmetrically stacked, save for one empty space at the top of the end column at the place where the plaintiff had been standing. No one saw the can fall.

The can had a metal spout which pierced her foot and inflicted painful and permanent injury. The jury gave her $10,000 and her husband $2500, and the defendant has appealed, asking judgment n.o.v. or a new trial.

After the accident a store clerk came up and according to the plaintiff said that he had told the store manager that the cans were not stacked right and that

[ 397 Pa. Page 325]

    someone would get hurt. The trial judge struck out this testimony later, when it became apparent that the clerk had no authority to bind defendant. However, the manager testified for the plaintiffs that the cans didn't stack well because of the protruding spout and lack of leg. He added that they were usually stacked flat, not only because stacking them on top of each other would hide other merchandise displayed on the shelf behind them but because they would fall over and be dangerous: the clerks were not allowed to stack them so.

The manager was not in the store when the accident occurred, and the plaintiff testified that the cans were in fact ...


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