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HALLBAUER v. ZARFOSS ET AL. (12/17/59)

December 17, 1959

HALLBAUER
v.
ZARFOSS ET AL., APPELLANTS.



Appeal, No. 363, Oct. T., 1959, from judgment of Court of Common Pleas of Lancaster County, April T., 1958, No. 43, in case of Charles J. Hallbauer et al. v. Harold J. Zarfoss et al. Judgment affirmed.

COUNSEL

John I. Hartman, Jr., with him Windolph, Burkholder & Hartman, for appellants.

John Milton Ranck, with him Herbert S. Levy, and Appel, Ranck, Levy & Appel, for appellees.

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

Author: Rhodes

[ 191 Pa. Super. Page 172]

OPINION BY RHODES, P.J.

In this trespass action plaintiffs, husband and wife, sought to recover damages for personal injuries sustained by wife-plaintiff when she fell down a flight

[ 191 Pa. Super. Page 173]

    of stairs in defendants' hardware store in Elizabethtown, Lancaster County. The jury awarded a verdict in favor of plaintiffs. Defendants' motion for judgment n.o.v. was overruled by the court below. Defendants have appealed from the judgment entered upon the verdict.

Defendants contend that the evidence does not establish negligence on their part, and that wife-plaintiff was guilty of contributory negligence as a matter of law.

The accident occurred on April 21, 1956. Mrs. Hallbauer, wife-plaintiff, entered defendants' hardware store about 8:30 p.m. that evening. The initial purpose was to purchase a hose reel. She entered the main door of the store from Market Square and walked toward the rear of the store, that is, in a westerly direction. She inquired as to where the hose reels were located and was directed to the rear of the store by a salesman. Continuing in a westerly direction to the rear of the store, she found a hose reel. While waiting for a clerk she was attracted to a rack of brushes. Upon observing the display of mops, brooms, and brushes, which were in a plywood display case directly across from the hose reels and to her right or in a northerly direction, she recalled that she was also in need of a wall brush. She proceeded to the display rack and went from one end to the other examining the bristles of the various brushes. The display, including mops, brooms, and brushes, was so constructed that she was required to reach above her head to observe and examine the articles. At the western end of the display she found a brush which she decided to purchase. It was then that she saw one of the owners of the store, who was apparently occupied with another customer in the rear of the store. She also saw a Mrs. Halderman standing at the hose reel table. She could not recall whether these events occurred before or after she had

[ 191 Pa. Super. Page 174]

    examined the brush which she had decided to purchase; in fact, she stated that she remembered nothing thereafter until she was in ...


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