Appeal from judgment of Court of Common Pleas of Delaware County, June T., 1962, No. 2170, in case of Mary Stenson v. Domenick Rechutti, trading as Dom's Normandy Market.
Myron H. Deutsch, for appellant.
Melvin G. Levy, with him Albert Blumberg, and McClenachan, Blumberg & Levy, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Musmanno and Mr. Justice Cohen dissent.
Plaintiff appeals from a judgment of non-suit.
Plaintiff brought a trespass action against Domenick Rechutti, the owner of Dom's Normandy Market, a corner grocery store, to recover damages for personal injuries sustained when she bumped her leg on a basket in the defendant's grocery store.
In Repyneck v. Tarantino, 415 Pa. 92, 202 A.2d 105, the Court said (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.2d 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."'"
Reviewing the testimony in the light most favorable to the plaintiff, the following facts were established. On October 14, 1961, at approximately six o'clock in the evening, plaintiff was marketing in defendant's store, as had been her custom for several years. The store was well lighted.
Plaintiff asked for a "piece of meat." Defendant walked to the rear of the store where the meat was stored and plaintiff followed him. Defendant picked out a piece of meat and, standing behind the meat block and service counter, held up the meat and said, "Is this all right?" Plaintiff moved forward to see the meat better and bumped her right leg on a wire basket, one foot high and two feet wide, which was in front of the service counter. The basket ...