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COSTELLO v. WYSS (04/18/63)

April 18, 1963

COSTELLO
v.
WYSS, INC. ET AL., APPELLANTS.



Appeal, No. 445, Oct. T., 1962, from judgment of Court of Common Pleas of Delaware County, March T., 1961, No. 1848, in case of Ellen C. Costello v. Wyss, Inc. et al. Judgment affirmed.

COUNSEL

Bernard P. Carey, Jr., for appellants.

Donald M. Collins, with him Oliver, Macartney & Collins, for appellee.

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

Author: Wright

[ 200 Pa. Super. Page 569]

OPINION BY WRIGHT, J.

Ellen C. Costello filed a complaint in trespass against Wyss, Inc., a Pennsylvania corporation, Herbert

[ 200 Pa. Super. Page 570]

H. Youtie, an individual, and Playtown Park, a partnership, to recover damages for personal injuries sustained when she tripped and fell in a parking lot adjoining defendants' amusement park. The jury returned a verdict in favor of the plaintiff in amount of $5,000.00. The defendants filed timely motions for a new trial, and for judgment n.o.v. The motion for a new trial was subsequently withdrawn. The motion for judgment n.o.v. was dismissed by the court en banc, and judgment was entered on the verdict. This appeal followed. The factual situation appears in the following excerpt from the opinion below:

"On July 11, 1959, plaintiff, Ellen C. Costello, visited an amusement park located in Springfield, Delaware County, which amusement park was owned and operated by the defendants. She was accompanied by her cousin, his wife and their two children. Plaintiff drove the group to the amusement park in her car and arrived at about 7:00 p.m., while it was still daylight. She parked her car in the parking lot located south of the amusement area, and entered the amusement area where she remained until approximately 9:30 p.m. While returning to her car in the parking lot she tripped over a railroad tie which was located between two parked cars, and sustained certain injuries ...

"The evidence presented at the trial when considered in the light most favorable to the plaintiff shows that plaintiff, while it was still daylight, parked her car in the second row of the parking lot, about 100 feet from the gate to the amusement area; that the color of the parking lot surface was black; that in getting out of her car she noticed a railroad tie which she stepped onto and walked to the rear of her car into one of the aisles of the parking lot; that she did not notice any other railroad ties or empty spaces in the parking lot; that she left the amusement area at about 9:30

[ 200 Pa. Super. Page 571]

    p.m. at which time it was cloudy and starting to rain; that the parking lot was dimly lighted; that although she did not notice any lights specifically provided for the parking lot itself there was some light coming from the bright lights in the amusement area; that she left the amusement area by the same gate she had entered; that she turned right and walked down the first aisle of the parking lot; that as she walked down the aisle the light there was dim; that she did not notice any empty spaces in the first row of parked cars; that in order to get to her car parked in the second row she turned to walk between two cars parked in the first row of cars; that these two cars were approximately two feet apart; that as she got about half-way into the path between the two parked cars she ...


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