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COHEN ET VIR v. PENN FRUIT COMPANY (04/13/60)

April 13, 1960

COHEN ET VIR, APPELLANTS,
v.
PENN FRUIT COMPANY, INC.



Appeals, Nos. 474 and 475, Oct. T., 1959, from judgments of Municipal Court of Philadelphia County, Jan. T., 1959, No. 611, in case of Miriam H. Cohen et vir v. Penn Fruit Company, Inc. Judgments affirmed.

COUNSEL

Norman Shigon, for appellants.

Samuel Kagle, with him Oscar Brown, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Montgomery

[ 192 Pa. Super. Page 246]

OPINION BY MONTGOMERY, J.

These two appeals are from judgments entered in favor of the appellee (defendant) in the Municipal Court of Philadelphia County after a trial without a jury before the Hon. JOHN ROBERT JONES, J.

The actions below were in trespass for personal injuries sustained by Miriam Cohen as a result of a can of fruit juice falling and striking the small toe of her right foot. Appellants are husband and wife.

In lieu of printing the record of testimony, the following agreed statement of facts has been filed, viz. (as limited to the occurrence):

"On October 6, 1958, about 10:30 a.m., Miriam Cohen, accompanied by her sister, Mrs. Sims, did her weekly shopping at defendant's self-service store located at Castor Avenue and Magee Street in Philadelphia. Each utilized a shopping cart into which they placed merchandise selected from the shelves and counters. They entered the aisle where juices were displayed. Mrs. Sims preceded plaintiff. The juices were displayed on shelves on three levels. The fruit juices were segregated from the vegetable juices by a 'separator'. The fruit juices were to plaintiff's left, and the vegetable juices were to her right. She reached for a jar of tomato juice on the second shelf and a can of pineapple juice, which was to her left, struck the 'last toe of her right foot'. She did not see the can fall. The can was seven inches high and contained forty-six ounces of fluid.

"Mrs. Sims testified that as she passed the juice shelves she noticed that the cans were 'disarranged... they were stacked one on top of the other'.

[ 192 Pa. Super. Page 247]

"Plaintiff testified 'the cans were in a pyramid form... one can in between two but it didn't come to a point'. Other customers were shopping in the aisle at the time, and plaintiff was obliged to wait until another shopper ...


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