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SMITH v. GREAT ATLANTIC & PACIFIC TEA COMPANY (04/15/65)

decided: April 15, 1965.

SMITH
v.
GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., APPELLANT



Appeal from judgment of Court of Common Pleas of Columbia County, Jan. T., 1963, No. 85, in case of Phyllis Smith v. Great Atlantic & Pacific Tea Company, Inc.

COUNSEL

Donald A. Lewis, for appellant.

Thomas J. Evans, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Ervin, P. J.

Author: Ervin

[ 205 Pa. Super. Page 274]

In this trespass action for damages resulting from personal injuries to the plaintiff, the jury found for the plaintiff. The defendant's motion for judgment n.o.v. was refused and the defendant appealed from the judgment entered on the verdict.

It is the contention of the appellant that there was no evidence establishing negligence on its part and, further, that the plaintiff was guilty of contributory negligence as a matter of law.

We have reviewed the entire record and, viewing the facts in the light most favorable to the verdict winner, the reasonable facts and inferences are as follows:

The defendant was the operator of a self-service super-market in Bloomsburg. On March 27, 1961, between 11:50 a.m. and 12:30 p.m., the plaintiff and her husband were shopping in the defendant's store. They had shopped there many times previously. On the day and time in question the plaintiff walked down an aisle which had shelves of food on each side. Coffee was on one side and baby food on the other. The aisle was empty when the plaintiff started down and also when she stopped about halfway down to get coffee. As the

[ 205 Pa. Super. Page 275]

    plaintiff turned to go to the other side of the aisle, she struck her left ankle on an empty, unattended metal freight cart, 8 inches high and 16 inches wide, with a handle 38 inches high, which at that time was immediately behind her. The cart was used by the employes of the store for carrying the merchandise to replenish the shelves. The plaintiff broke her left ankle and fell to the floor.

The defense witness, Harry E. Hower, a clerk, testified that he had been using the cart to fill the baby food shelves and he left it, partially loaded, lengthwise, in the center of the aisle, at about twelve o'clock, when he went to eat.

The plaintiff testified as follows on direct examination: "Q. Describe just what happened; did you trip over this cart or truck? A. It was right behind me, and the front part of it was so you would trip over it when you turned, the front part -- not the whole cart, but the upper cart; and it was not there when I went up the aisle, and I did not see it. I turned to get the baby food which I knew was there because I had gotten it many times, and as I turned to get that, the cart was there and threw me down. Q. You say your left leg contacted? A. That is right. Q. You fell ...


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