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COHEN v. FOOD FAIR STORES (11/11/59)

November 11, 1959

COHEN
v.
FOOD FAIR STORES, INC., APPELLANT.



Appeals, Nos. 348, 349, and 350, Oct. T., 1959, from judgment and orders of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1956, No. 1559, in case of Isolde Cohen et vir. v. Food Fair Stores, Inc. Judgment and orders affirmed.

COUNSEL

Albert C. Gekoski, for appellant.

Harvey B. Levin, with him Bernstein & Bernstein, for appellees.

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

Author: Gunther

[ 190 Pa. Super. Page 622]

OPINION BY GUNTHER, J.

These appeals are from the refusal to grant the motion for judgment n.o.v. and the granting of plaintiffs' motion for a new trial. The action in trespass was instituted by Marvin and Isolde Cohen, husband and wife, against Food Fair Stores, Inc., defendant. The jury returned a verdict in favor of the plaintiff husband in the amount of $745.90 and found for the defendant as to the wife.Plaintiffs' motion for a new trial was based on the ground that the damages awarded by the jury were inadequate and that the verdict as rendered was inconsistent. Defendant's motion for judgment n.o.v. was based on the ground that no negligence was shown on the part of the defendant, or if negligence was shown, plaintiff, Isolde Cohen, was guilty of contributory negligence as a matter of law.

The evidence viewed most favorably to plaintiffs, as it must be on defendant's motion, established the following facts: On November 7, 1955, at approximately 2:30 P.M., Mrs. Cohen entered the Food Fair Store in Coatesville, Pennsylvania and, as she took a full step into the building, her right foot slipped on the wet vestibule terrazzo floor and she landed on the base of her spine. The entire entrance floor was wet. After Mrs. Cohen fell, she noticed that there was water around her. She was wearing a heavy wool skirt and jacket, both of which were wet, muddy and dirty. She was wearing walking shoes with rubber heels. There was evidence introduced that it had been raining from mid-morning, approximately 10:30 A.M., until the time Mrs. Cohen fell at approximately 2:30 P.M. Another customer of defendant's store testified that the vestibule was wet when she entered the store at about 2:15 P.M., and that it had been raining hard all day. The official weather report showed rain at the Coatesville

[ 190 Pa. Super. Page 623]

    station for each hour from 11:00 A.M., through the rest of the day. The floor of the vestibule was a terrazzo floor and there was testimony from an architect as to the slippery qualities of terrazzo when wet, and the practice of placing rubber mats, abrasive strips or abrasive materials such as bird gravel on a wet terrazzo floor. Defendant had actual knowledge and notice of the danger to its customers. The store manager testified, when called by plaintiffs, that he put down bird gravel in the vestibule on rainy days to provide traction "so that there would be no cause for any slipping or that there wouldn't be any slipperiness." He further testified that he had not put down any bird gravel that day up to the time Mrs. Cohen reported that she had fallen. Mrs. Cohen had been a customer of the defendant for approximately five years prior to the accident. During that period she had shopped there on numerous occasions when it was raining, and had always been aware of the presence of a gritty substance on the floor of the vestibule. She relied on the same protection on the day of the accident, but the protection was not there.

On this appeal, appellant urges upon us that (1) plaintiff did not prove that the defendant was negligent; that (2) plaintiff has failed to prove either actual or constructive notice to defendant of the alleged dangerous condition; that (3) plaintiff was guilty of contributory negligence in deliberately stepping into the water which was visible, and (4) that the verdict of the jury was not so low as to justify the granting of a new trial. We shall consider these contentions separately.

(1) The testimony of the store manager clearly shows that he knew of the dangerous condition of the vestibule floor on rainy days. In view of his usual practice on ...


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