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CUTLER v. DUSHOFF ET AL. (03/24/60)

March 24, 1960

CUTLER
v.
DUSHOFF ET AL., APPELLANTS.



Appeals, Nos. 331 to 334, inclusive, Oct. T., 1959, from judgment of Court of Common Pleas No. 2 of Philadelphia County, in case of Minnie Cutler et al. v. David Dushoff and Daniel Gerson, individually and trading as New Latin Casino. Judgment affirmed; reargument refused April 11, 1960.

COUNSEL

Ronald N. Rutenberg, with him Harry A. Rutenberg, for appellants.

William J. McKinley, Jr., for appellees.

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

Author: Watkins

[ 192 Pa. Super. Page 39]

OPINION BY WATKINS, J.

This is an appeal from the judgment of the Court of Common Pleas No. 2 of Philadelphia County refusing defendants' motions for judgment n.o.v. and for a new trial in a trespass action for personal injuries sustained by the wife-plaintiff, Minnie Cutler, while on the property of defendants, David Dushoff and Daniel Gerson, individually and trading as New Latin Casino, the trial of which resulted in verdicts in favor of both plaintiffs.

The pertinent facts appear to be as follows: Mrs. Cutler, the wife-plaintiff, testified that on October 22, 1955, at approximately 12:30 p.m., she entered defendants' establishment, known as the Latin Casino, for the purpose of attending a party to which she had been invited.

After checking her hat and coat she descended a flight of steps to the basement level where defendants' restaurant is located. She inquired where her friend's party was taking place and was directed to proceed

[ 192 Pa. Super. Page 40]

    down a well-carpeted aisle between rows of tables to the right. As she proceeded down the aisle she noticed a white strip and observed that it indicated a difference of level or step in the aisle which she traversed without difficulty. She then proceeded ten or fifteen feet farther down the aisle when her heel caught on a loose piece of metal molding or stripping, causing her to fall and suffer painful and serious injuries. At the time of the accident she was wearing low heel shoes and carrying, in addition to her pocketbook, a gift for the party which she planned to attend.

After the fall, plaintiff realized that she had tripped over a piece of metal raised approximately one-half inch from the floor level, which was used to secure a white vinyl pad located at a second step or difference in floor level in the aisle. She stated that prior to her fall she had not seen the second step or the metal stripping, and explained that the lighting conditions in this area were very dim.

A witness for the plaintiff, Mrs. Esther Wax, testified that on the day in question, October 22, 1955, she attended the same party given at the Latin Casino; that she arrived at approximately twelve o'clock noon, and that while she was proceeding down the same aisle, the heel of her shoe became engaged in an up-raised piece of metal in exactly the same location where plaintiff fell; that she too was caused to fall, but fortunately she suffered only minor injuries. She likewise testified that the lighting conditions in the area of the step on which she fell were very dim. On this occasion the witness testified that she observed that the metal strip used to secure the ...


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