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VITALI v. BANKERS SECURITIES CORPORATION (01/18/60)

January 18, 1960

VITALI
v.
BANKERS SECURITIES CORPORATION, APPELLANT.



Appeals, Nos. 298 and 305, Jan. T., 1959, from judgments of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1956, No. 8486, in case of Bernadette Vitali, a minor, by her guardian, Serafino Vitali et al. v. Bankers Securities Corporation. Judgments affirmed. Trespass for personal injuries. Before ALEXANDER, J. Verdicts returned for minor plaintiffs in amounts of $8,000 and $200. Defendant's motions for judgment non obstante veredicto and for new trial dismissed and judgments entered on the verdicts. Defendant appealed.

COUNSEL

Ralph S. Croskey, for appellant.

David H. Kubert, with him Martin R. Fountain, for appellees.

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

Author: Musmanno

[ 398 Pa. Page 231]

OPINION BY MR. JUSTICE MUSMANNO

Mothers with infants of a tender age are hindered in shopping because they cannot very well carry babies in their arms and still perform freely the arduous task of examining, selecting, and finally purchasing desired articles in the crowded bargain marts. Some department stores have met this difficulty by installing in their establishments little perambulators known as "baby strollers." The baby stroller involved in this case was a small four-wheeled vehicle with canvas seat and back, from which extended a vertical arm or shaft topped by a horizontal wooden handle by means of which the mother pushed or pulled the carriage.

On February 22, 1956, Mrs. Eleanor Vitali, accompanied by her 12-year-old niece, Judith Doyle, entered the Snellenburg Department Store in Philadelphia, with her two babies, Bernadette, three years of age, and Nancy, one year of age. On the ground floor of the establishment, Mrs. Vitali was supplied by an employee of the store with two of the designated baby strollers. In one she placed Nancy and assigned it to her niece. In one other she put Bernadette and retained it herself.

After five minutes of strolling around on the ground floor, Mrs. Vitali headed for the basement for the bargains invariably associated with subterranean levels of department stores. The basement was reached via a stairway. Judith pushed her stroller down eight steps

[ 398 Pa. Page 232]

    to the landing without difficulty or mishap. When, however, Mrs. Vitali reached a point about seven or eight inches from the edge of the top step of the stairway, the handle of her baby stroller pulled loose from the shaft and the carriage shot down the stairway, colliding at the landing with Nancy's stroller. Both babies were thrown out and to the concrete landing. Nancy was injured slightly but Bernadette sustained a skull fracture.

Trespass action on behalf of the children and their parents was entered against the owner of the department store and the jury returned a verdict in favor of Bernadette in the sum of $8,000 and in favor of Nancy in the sum of $200. The jury awarded nothing to the parents. The defendant store moved for judgment n.o.v. on three grounds: (1) that the incontrovertible physical facts doctrine overcame the plaintiff-mother's story of the accident, (2) that if there was a latent defect in the stroller device, the burden was on the plaintiffs to prove that the defendant could or should have discovered it by ...


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