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MURPHY v. BARGAIN CITY (06/11/64)

June 11, 1964

MURPHY
v.
BARGAIN CITY, U.S.A., INC., APPELLANT.



Appeal, no. 405, Oct. T., 1963, from judgment of Court of Common Pleas No. 1 of Philadelphia County, March T., 1962, No. 4932, in case of Richard F. Murphy, Jr. et ux. v. Bargain City, U.S.A., Inc. Judgment affirmed.

COUNSEL

William D. Valente, with him Mesirov, Gelman, Jaffe & Levin, for appellant.

Herbert A. Darton, for appellees.

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

Author: Watkins

[ 203 Pa. Super. Page 407]

OPINION BY WATKINS, J. [This appeal is from the order of the Court of Common

This appeal is from the order of the Court of Common exceptions to verdicts rendered for the plaintiffs by the court, sitting without a jury, in a trespass action for personal injuries. The trial judge entered a verdict in favor of the wife-plaintiff for $3000 and in favor of the husband-plaintiff for $600.

The facts appear to be as follows, bearing in mind that in determining whether judgment n.o.v. should be granted on appeal, the evidence, together with all reasonable inferences to be drawn therefrom, must be received in alight most favorable to the verdict winner, in this case, the plaintiffs-appellees. Piwoz v. Iannacone, 406 Pa. 588, 178 A.2d 707 (1962).

On July 7, 1961 the plaintiff, Margaret Mary Murphy, together with her daughter-in-law and granddaughter

[ 203 Pa. Super. Page 408]

    entered the store of the defendant at Horsham, Pennsylvania for the purpose of purchasing upholstery material. While so engaged a sizeable piece of shelving fell from its brackets and struck the toes of plaintiff's left foot causing injury to the toes and rather severe pain which incapacitated her for some two months and required medical attention, and in fact still gave her trouble at the time of trial in May, 1963.

This shelf was one of three shelves set on brackets attached to an "A" frame and was made accessible to customers to shelves on either side of it. The shelf was to be secured by clips on its front and was bare of merchandise at the time of the accident, and had been for some time. The rack was in an open area with an aisle on either side and was as large as the size of a desk, about 1 1/2 inches thick, 3 feet across and 6 feet long The shelves on the rack were movable and held in position by brackets with a life on the end of the brackets so that the shelf could not be moved, if properly affixed. The plaintiff's granddaughter, then ten years old, came in slight contact with the shelf and was knocked off balance as it fell.

Since the appellee was a business invitee in the store, the appellant company owed her a duty to maintain the premises in such condition so as not to cause harm to her or other invitees. A business invitee is entitled to expect that the possessor of the store will take reasonable care to discover the actual condition of the premises and either make them safe or warn her of dangerous conditions. Restatement, Torts, ยง 343, page 934: "... a business visitor is not required to be on the alert to discover defects which, if he were a bare licensee, entitled to expect nothing but notice of known defects, he might be negligent in not discovering. This ...


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