Appeal, No. 131, Jan. T., 1962, from judgment of Court of Common Pleas of Bucks County, May T., 1959, No. 418, in case of Samuel Podvin v. Somerton Springs Swim Club, Inc. Judgment affirmed.
William A. Goichman, for appellant.
Donald W. VanArtsdalen, with him VanArtsdalen & Pratt, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
This is an appeal from a non-suit. Podvin, a member of defendant club, brought an action in trespass to recover damages for injuries sustained by him while playing volleyball. The volleyball court was owned by defendant and was on its premises. Plaintiff wore sneakers; he was playing with five other players when the injury happened on August 30, 1958 at about 2:00 p.m.
Considering the testimony in the light most favorable to plaintiff, plaintiff testified: "Q. Will you tell us
in your own words how the accident happened? A. Well, I was playing on the left court, and the ball came over my head on the right, and I jumped up to hit the ball over the net, and when I came down I landed on sand, and my foot went under me. ... and when it went from under me my whole body went right down on my ankle."
Plaintiff was an experienced player who had played volleyball on defendant's premises ten times that summer prior to the date of the accident. On August 30 he had waited at the volleyball court for an hour to play on a team of six persons. Obviously he must have seen the condition of the court. Moreover, plaintiff's team (of three) had played one game which lasted approximately 20 minutes. They then changed sides and early in the second game plaintiff jumped into the air and landed in the manner above described.
Plaintiff testified that he had not seen any sand on the court that day, but that when he got up after his fall his foot was scraped and there was sand embedded in his foot and his ankle and scrape marks clear up to his thigh.*fn1 The volleyball court lay adjacent or near to a children's play-sand area, and on various occasions children ran across some portion of the volleyball court with a bucket of sand, or in a bathing suit covered with sand. While there was no evidence that anyone ever observed sand falling from the children's bathing suits or buckets, it is a matter of common knowledge that sand was likely to drop therefrom. However, plaintiff admitted that almost every time he played volley ball, the ball would occasionally ...