Appeal, No. 136, Jan. T., 1960, from order of Court of Common Pleas of Adams County, Aug. T., 1955, No. 93, in case of Elizabeth M. Finney v. G. C. Murphy Company. Order affirmed.
John A. MacPhail, with him Brown, Swope and MacPhail, for appellant.
Arthur Berman, with him Eugene R. Hartman and Walter F. Miller, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Eagen, JJ.
OPINION BY MR. JUSTICE MUSMANNO.
Elizabeth M. Finney brought an action in trespass against G. C. Murphy Company alleging that on June 24, 1954, while in the defendant's store in Gettysburg, she slipped on an oily floor, fell and sustained serious injuries. At the trial she testified that her foot came into contact with a pool of oil, causing her to skid and fall on her left hip. She stated that when she rose from the floor she observed that the place where she fell was "heavily oiled" and that the spot measured approximately 21 inches in length and 11 inches in width. She said also that her left stocking and slip were stained with a substance which, to her senses of sight and smell, seemed oil.
It appears that the defendant company applied to its floors once a week a product known as "Mycosheen". A witness, Julian Rudisill, sales representative for the company which manufactured and sold mycosheen, testified that this product contained no oil. He explained that it was made up of solvents and gums. He admitted, however, that his knowledge on the subject was not a personal one and was derived from others. Although the plaintiff objected that testimony of this character was incompetent as hearsay, the trial judge admitted it. The jury returned a verdict for the defendant.
The trial court then ordered a new trial, stating that it had erred in allowing Rudisill's testimony as indicated. The defendant has objected to the order. We find that it was entirely justified under the law and the facts in the case.
The plaintiff's whole case was based on the proposition that the defendant's floor was covered with an oily substance. The jury should not have been permitted to found its verdict, as it might well have done, on the incompetent testimony of Rudisill that mycosheen did not contain oil. Rudisill did not know of his own knowledge whether mycosheen contained oil or not.
The defendant argues that even if the question had been excluded, the plaintiff could still not have recovered because the jury found as a special finding of fact that there was no pool of mycosheen or any other substance on the floor. In fact, the defendant insists that it is entitled to judgment on the verdict because the plaintiff did not make out a case of negligence. But the plaintiff might well have ...