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MARKLE v. ROBERT HALL CLOTHES. (06/05/63)

June 5, 1963

MARKLE, APPELLANT,
v.
ROBERT HALL CLOTHES.



Appeal, No. 303, Jan. T., 1962, from judgment of Court of Common Pleas of Luzerne County, Oct. T., 1960, No. 206, in case of Cora Markle v. Robert Hall Clothes of Wilkes-Barre, Inc. Judgment affirmed.

COUNSEL

Louis George Feldmann, with him Richard A. Kane, for appellant.

John A. Gallagher, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Bell

[ 411 Pa. Page 283]

OPINION BY MR. CHIEF JUSTICE BELL

Appellant instituted a trespass action against appellee, the owner of a so-called "low overhead" clothing store in Wilkes-Barre, to recover damages for personal injuries.

Clothing sold by the appellee was displayed on racks; the racks were made of pipe and were not attached to the floor. In the part of appellee's store where the plaintiff was injured, there were several parallel rows of such racks, adjacent rows being separated by aisles approximately 34 inches wide. When plaintiff, accompanied by her daughter, Mrs. Butler, was walking along one of the aisles between rows of racks they observed ahead of them another customer, a young girl of 14, who was examining clothing on one of the racks.

Mrs. Butler, who was walking ahead of her mother, passed safely by the other customer just mentioned, but when the appellant started to pass this other customer, the latter suddenly turned and bumped into the appellant with such force as to throw her off balance. In an effort to regain her balance, appellant reached for the top cross bar of an adjacent rack. In attempting to

[ 411 Pa. Page 284]

    grasp the top cross bar, appellant pushed the top of the rack away from her, but caused the bottom of the rack to strike her legs in such a way as to knock her down. Appellant fell to the floor and suffered the injuries complained of in this action.

The Court below entered a compulsory non-suit, which it refused to remove; hence this appeal.

In Flagiello v. Crilly, 409 Pa. 389, 187 A.2d 289, the Court said (page 390): "It is hornbook law that a judgment of non-suit can be entered only in clear cases and plaintiff must be given the benefit of all evidence favorable to him, together with all reasonable inferences of fact arising therefrom, and any conflict in the evidence must be resolved in his favor: Castelli v. Pittsburgh Railways Company, 402 Pa. ...


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