Appeal from judgment of Court of Common Pleas of Berks County, Jan. T., 1963, No. 92, in case of Agnes Lascoskie v. Berks County Trust Company and Claude A. Brumbach.
D. Frederick Muth, with him Rhoda, Stoudt & Bradley, for appellant.
Richard A. Bausher, with him Stevens & Lee, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones and Mr. Justice Eagen concur in the result. Mr. Justice Jones and Mr. Justice Eagen concur in the result. Dissenting Opinion by Mr. Justice Musmanno. Mr. Justice Cohen and Mr. Justice Roberts join in this dissent.
Plaintiff appeals from a judgment of non-suit.
Plaintiff instituted a trespass action against Berks County Trust Company and Claude A. Brumbach, appellees, to recover damages for personal injuries sustained when the plaintiff slipped and fell on a sidewalk on the property owned by the appellees and leased to third parties.
In Repyneck v. Tarantino, 415 Pa. 92, 202 A.2d 105, the Court stated (pages 93-94): "In Markle v. Robert Hall Clothes, 411 Pa. 282, 191 A.2d 374, the Court, quoting from Flagiello v. Crilly, 409 Pa. 389, 187 A.2d 289, said (page 284): '"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 facts arising therefrom, and any conflict in the evidence must be resolved in his favor: Castelli v. Pittsburgh Railways Company, 402 Pa. 135, 165 A.
d 632; Stimac v. Barkey, 405 Pa. 253, 174 A.2d 868; Borzik v. Miller, 399 Pa. 293, 159 A.2d 741.
"'"The law is likewise clear that the plaintiff has the burden of proving by a fair preponderance of the evidence that defendant was negligent and that his negligence was the proximate cause of the accident: Stimac v. Barkey, 405 Pa., supra; Schofield v. King, 388 Pa. 132, 130 A.2d 93."'"
On Sunday, December 17, 1961, the sidewalks and roads in the City of Reading and surrounding area were described as very slippery and icy. There was freezing rain and drizzle all day despite temperatures both above and below freezing. This freezing rain or drizzle continued until 2:00 a.m. Monday morning, when it changed to rain continuing until Monday afternoon. Except for 9:00 p.m. Sunday night, at which time the temperature was 32 degrees, the temperature remained at 33 degrees or 34 degrees from Sunday afternoon until late Monday morning.
On Monday, December 18, 1961, the plaintiff left her home (324 Spring Garden Street) in the City of Reading, at approximately 6:10 a.m., intending to walk to church. Before she left home, she had carried the garbage out to the rear of her yard and it was not slippery on the walk in her back yard. In going to church, the plaintiff walked north on Spring Garden Street to Bingaman Street, turned to her right, crossed Spring Garden Street and walked east on Bingaman Street. A light rain or drizzle was falling and it was dark, although the area was illuminated by street lights. When she reached defendants' premises she took several steps on their brick sidewalk and slipped on the ice, and fell. A man following some distance behind plaintiff ...