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SCHOEN v. YOUSHOCK (03/17/64)

March 17, 1964

SCHOEN
v.
YOUSHOCK, APPELLANT.



Appeal, No. 1, Feb. T., 1965, from judgment of Court of Common Pleas of Lackawanna County, Sept. T., 1962, No. 1677, in case of Norma Schoen v. Florence Youshock, trading as Florence Beauty Salon. Judgment reversed.

COUNSEL

Harry P. O'Neill, Jr., with him Frank M. Walsh and Daniel H. Jenkins, for appellant.

William J. Oliver, with him Oliver, Price and Rhodes, for appellee.

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

Author: Ervin

[ 202 Pa. Super. Page 461]

OPINION BY ERVIN, J.

In this action of trespass tried before President Judge HOBAN, without a jury, an award of damages

[ 202 Pa. Super. Page 462]

    for personal injuries in the sum of $6,000.72 was made in favor of the plaintiff.

Plaintiff-appellee, Norma Schoen, a woman 75 years of age, slipped and fell on the icy sidewalk in front of the property of Florence Youshock, defendant-appellant, on December 18, 1961. When Mrs. Schoen awakened that morning she noticed that the streets outside of her home were very icy and that this condition had come about since the previous day. She had an appointment at appellant's beauty salon and she called the appellant at nine o'clock in the morning and related her conversation as follows: "A. Yes. I called Florence on the phone at 9 o'clock in the morning. Q. And did you talk to Florence? A. I talked with Helen first and then later with Florence. Q. And would you tell us what your conversation was with Florence on that phone conversation, Mrs. Schoen? A. With Florence? Well, I had told Helen that I would not be able to come down because of the dangerous walking, it was so icy, and I asked her if I could have an appointment later, later in the week. Then Florence came to the phone and told me that she wouldn't be able to give me the appointment. So I - let's see - well, she wouldn't be able to give me the appointment. So I asked her then if she could take me when I came down, and she said she would; even if I were a little late, she would fill me in, that is, work me in. But she said that she didn't think that - she said, 'I don't think that you need to worry, Mrs. Schoen, at all about the walking. Helen came and she was all right.' And so I said then that I would come."

Shortly thereafter Mrs. Schoen left her home and just missed a bus. She then hesitated to continue on because she realized that it was a bad day for walking and then decided to walk on the the beauty salon, which was approximately four and one-half blocks from her home. It is undisputed that the condition of the general

[ 202 Pa. Super. Page 463]

    area at that time was that of a glaze of ice and Dr. Lohmann, a witness for Mrs. Schoen, testified that there was a freezing rain that morning which was continuing when he came to treat Mrs. Schoen immediately after the happening of the accident. The ...


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