March 19, 1963
Appeal, No. 275, Jan. T., 1962, from judgment of Court of Common Pleas of Luzerne County, Dec. T., 1959, No. 1204, in case of Grace Dubois v. City of Wilkes-Barre, James F. Poland and Melvin Mosier, trading as The Forty Fort Ice Cream Company. Judgment affirmed.
Arthur Piccone, with him Raymond F. Lowery, for appellant.
E. C. Marianelli, for City of Wilkes-Barre, appellee.
John A. Gallagher, for appellee.
John L. McDonald, for appellee.
Before Bell, C.j., Musmanno, Cohen, Eagen, O'brien and Roberts, JJ.
[ 410 Pa. Page 156]
OPINION PER CURIAM
Plaintiff sued for injuries, suffered from a fall on a public sidewalk, allegedly caused by the existence of an accumulation of melted ice cream and grease thereon. The trial judge entered a compulsory non-suit, which the court en banc refused to disturb. Plaintiff appeals.
The action of the court below was correct. The plaintiff's testimony failed to establish what caused her to fall. In order to establish liability in an action of this nature, it is necessary for the plaintiff to prove what actually caused the accident, not what might possibly have caused it. The jury cannot be allowed to guess that the fall resulted from the existence of a foreign substance on the sidewalk. See, Sellers v.
[ 410 Pa. Page 157]
Cline, 160 Pa. Superior Ct. 85, 49 A.2d 873 (1946); Rogers v. S. Phila. Nat'l Bank, 160 Pa. Superior Ct. 154, 50 A.2d 697 (1947); Hillelson v. Renner, 183 Pa. Superior Ct. 148, 130 A.2d 212 (1957); Burns v. City of Pitts., 320 Pa. 92, 181 A. 487 (1935); Rinaldi v. Levine, 406 Pa. 74, 176 A.2d 623 (1962); Gayne v. Philip Carey Co., 385 Pa. 618, 123 A.2d 432 (1956).
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