Appeal, No. 103, Oct. T., 1964, from judgment of Court of Common Pleas of Lebanon County, Sept. T., 1962, No. 440, in case of Clinton R. Sechrist v. The Consolidated Market House of Lebanon, P. Judgment reversed.
L. Ehrman Meyer, with him Meyer, Brubaker & Whitman, for appellant.
H. Rank Bickel, Jr., with him Clarke M. Seltzer, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 203 Pa. Super. Page 272]
OPINION BY MONTGOMERY, J.
This is an appeal from the refusal of the Court of Common Pleas of Lebanon County to take off a compulsory non-suit in a trespass action for personal injuries.
Plaintiff-appellant, Clinton R. Sechrist, a man of 77 years at the time of the accident on June 2, 1962, was in the business of selling plants at retail in the public market house of the Consolidated Market House of Lebanon, Pa., defendant-appellee. He rented the stall in which the accident occurred from appellee on a monthly basis. Appellant used the stall once or twice a week and had used it on the last market day prior to the date of the accident. It was customary for the appellee to clean the market place, including the floor in and around appellant's stall, at the end of each market
[ 203 Pa. Super. Page 273]
day. On the morning of the accident appellant arrived at his stall at 3:45 A.M., at which time he observed, inter alia, that about a dozen other vendors had arrived at the market previous to his arrival; that his stall had been changed from a double to a single stall;*fn1 that the new stal was closed in front below the counter so that the walkway within the stall between the front of the stall and the back shelves was obscured and was inadequately lighted; that a board, newly painted white and unworn, had been placed (by a person or persons unknown) in the walkway; and that an old board, which appellant had been using for 25 years in the walkway to keep his feet dry, was missing. The appellee admitted that it changed the stalls but denied any knowledge of the change of boards. Sometime after 4:00 A.M. appellant, while carrying an armful of plants weighting between 20 and 35 pounds, tripped over a nail protruding one and one quarter inches above the surface of and near the end of the new board in the walkway. He received personal injuries from the resulting fall. The lower court granted the non-suit for the reasons that (1) there was no evidence upon which the jury could base an inference of negligence attributable to the appellee, and, alternatively, (2) assuming that appellant was a business invitee of the appellee, there was not evidence either of actual or constructive notice of the dangerous condition upon the part of the appellee. On this appeal the issues are confined to the above two questions because the parties raise no question of contributory negligence; and they do not dispute the facts that a dangerous condition existed in the stall and that the unknown person or persons who put the new board with the protruding nail in the walkway was negligent.
[ 203 Pa. Super. Page 274]
In 1959 our Supreme Court enunciated a reinterpretation of the law of torts applicable to this case. In Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 137, 153 A.2d 477, 479 (1959), Mr. Justice MCBRIDE, speaking for the majority of the Court, stated, "The formula that 'the circumstances must be so strong as to preclude the possibility of injury in any other way and provide as the only reasonable inference the conclusion plaintiff advances' is not a correct statement of the rule to be applied by the judge on deciding a motion for either a non-suit or binding instructions. If that were the rule what would be the province of the jury? In no case where there was more than one reasonable inference would the jury be permitted to decide. Insofar as this rule is stated in our cases it is disapproved." In Lear v. Shirk's Motor Express Corporation, 397 Pa. 144, 152, 152 A.2d 883, 887 (1959), Mr. Justice MCBRIDE further stated, "A plaintiff is entitled to have his case considered by the jury even though he does not show that the only reasonable inference is that defendant's negligence was the proximate cause of the accident. It is enough that he produces evidence which may properly be found by the jury to justify an inference that the defendant's negligence was the proximate cause of the accident because such evidence outweighs even though it does not exclude an inference that the defendant was not negligent or that his negligence was not the proximate cause of the accident." Finally, in 1962, in a case with facts closely similar to the facts in our ...