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ROGERS ET VIR v. BINKHAM. (03/19/63)

March 19, 1963

ROGERS ET VIR, APPELLANT,
v.
BINKHAM.



Appeal, No. 20, Feb. T., 1962, from judgments of Court of Common Pleas of Lackawanna County, April T., 1960, No. 434, in case of Ann Rogers et vir. v. Harry Binkham et al. Judgments affirmed.

COUNSEL

Robert J. Murphy, with him Christopher T. Powell and Joseph M. Goldstein, for appellants.

James W. Scanlon, for appellees.

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

Author: Wright

[ 200 Pa. Super. Page 313]

OPINION BY WRIGHT, J.

Ann Rogers and her husband, Joseph, filed a complaint in trespass against Harry Binkham and Jack Binkham, individually and trading as Salben's, a partnership,

[ 200 Pa. Super. Page 314]

    to recover damages for personal injuries sustained when the wife-plaintiff fell in the entry way of defendants' store at 422 Lackawanna Avenue in the City of Scranton. The complaint also named as a defendant, the Apparel Realty Company, owner of the building. When the trial commenced, counsel for the plaintiffs discontinued the action so far as it concerned the Apparel Realty Company. At the conclusion of plaintiffs' testimony, defendants moved for a compulsory non-suit, which motion was overruled. Defendants also presented a point for binding instructions, which point was refused. The jury returned a verdict in favor of the husband-plaintiff in amount of $227.45, and a verdict in favor of the wife-plaintiff in amount of $2,500.00. The court en banc subsequently entered judgments in favor of the defendants non obstante veredicto, and this appeal followed.*fn1 The factual situation appears in the following excerpt from the opinion below:

"On May 6, 1958 at 5:00 o'clock in the afternoon plaintiff Ann Rogers, then in the second month of pregnancy, was on a shopping tour in Scranton. She was then living in New Jersey but visiting in Scranton, her former home, and was intimately familiar with its streets and shops. The day was rainy, intermittent thundershowers having occurred since the preceding midnight. Rain had fallen within half an hour before 5:00 P.M. Mrs. Rogers, carrying an umbrella, closed, a raincoat and a small package, crossed Lackawanna Avenue at Wyoming, proceeded east on Lackawanna to Salben's, a women's apparel shop, turned in the entry, took two and one half or three steps, slipped and fell, receiving the injuries complained of.

[ 200 Pa. Super. Page 315]

"The entry way was the familiarly type recessed open area leading directly off the sidewalk on the same level, between show windows on each side, with the door to the shop several feet farther, beyond the point of fall. The entry area was paved with terrazzo tile, was wet, shiny and slippery from the recent rain and when Mrs. Rogers was assisted to her feet by one of the store employees who had observed the fall, there was some dirt on her arm and clothing.

"Mrs. Rogers was to enter the store on business, and was thoroughly familiar with the entryway, having been a customer or visitor to the place for ten years or more. She was looking where she was going, and to her the entry ...


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