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MARTINO v. GREAT ATLANTIC & PACIFIC TEA COMPANY (10/13/65)

decided: October 13, 1965.

MARTINO, APPELLANT,
v.
GREAT ATLANTIC & PACIFIC TEA COMPANY



Appeal from judgment of Court of Common Pleas of Northampton County, June T., 1964, No. 133, in case of Ruth J. Martino and Daniel T. Martino v. The Great Atlantic & Pacific Tea Company.

COUNSEL

Norman Seidel, with him Hogan & Scott, for appellants.

John Field Oldt, with him Fox, Oldt & Hambrook, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones and Mr. Justice Cohen dissent. Concurring Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Musmanno.

Author: O'brien

[ 419 Pa. Page 231]

Appellants, husband and wife, went shopping, on September 29, 1961, in appellee's self-service market located in Easton. While they were proceeding through the produce department, wife appellant slipped and fell to the floor. Husband appellant, who was in front of his wife, did not see the fall but turned and saw her sitting on the floor. He testified that, immediately after the fall, he observed grape juice on his wife's left shoe and on the floor where she had fallen and a grape skin about a half a foot from where she was sitting. There was no evidence as to how any grapes got onto the floor or as to how long any grapes might have been there prior to the fall.

To recover their respective damages, appellants commenced an action of trespass which, after completion of their case in chief, terminated in the granting of appellee's motion for compulsory non-suit. This appeal followed the refusal by the court en banc of appellants' motion to take off the non-suit.

The light in which we view the record is governed by our oft-stated standard of review, namely, that a non-suit should be entered only in a clear case, and on appeal from the refusal to take off a compulsory non-suit, the plaintiff must be given the benefit of all favorable testimony and every reasonable inference of fact arising therefrom and all conflicts therein must be resolved in favor of plaintiff. Penn v. Isaly Dairy Co., 413 Pa. 548, 198 A.2d 322 (1964); Schwartz v. Urban Redev. Auth., 411 Pa. 530, 192 A.2d 371 (1963); Miller v. McMinn's Industries, Inc., 410 Pa. 234, 188 A.2d 738 (1963).

[ 419 Pa. Page 232]

The evidence discloses that grapes were displayed by appellee in an unpackaged condition on a counter. Bags for customer use were stored in the center of the counter approximately seven feet from the grapes. The scale at which produce was weighed and priced was across a two-foot wide aisle from the grape counter. Customers put grapes into bags and took them to the scale or carried them in their hands, unbagged, or in shopping carts to the scale, where a store employee priced them or bagged and priced them.

One of appellee's employees, called as a witness for appellants, testified that he had been employed in the produce section of the market for about a year prior to the accident. The court below succinctly summarized his testimony as follows: "From his experience, he stated lettuce leaves, grapes and cherries tended to fall on the store floor with more frequency than other items although other things such as bottles of jams and jellies, oranges, etc., also occasionally fell to the floor. He testified grapes had fallen from the counter on numerous occasions and customers would either step on them or carts would be rolled over them and there would be black stains left on the floor of the store. He stated these stains were present on the floor by the counter where the grapes were displayed on many occasions during 1960 and until the accident in 1961. One of his duties was to keep the produce area clear of debris and he was under instructions when he was in the area if he saw anything on the floor to remove it and he did keep the floor clean. He also swept the floor and the floor was mopped."

We agree with the court below that, viewing the evidence in the light of the standard hereinabove stated, wife appellant fell as the result of slipping on a grape on the floor. The question is whether the presence of the offending grape on the floor imposed liability on appellee.

[ 419 Pa. Page 233]

In order to recover, appellants must prove that appellee was negligent and that its negligence was the proximate cause of the accident. Cushey v. Plunkard, 413 Pa. 116, 196 A.2d 295 (1964); Idlette v. Tracey, 407 Pa. 278, 180 A.2d 37 (1962).

No citation of authority is necessary to support the hornbook proposition that the mere happening of an accident does not impose liability on any party. The negligence of the defendant in a trespass action must be proved by direct or circumstantial evidence. An accurate statement of the law of Pennsylvania applicable to the instant situation is set forth in ยง 343 of the Restatement of Torts as follows: "A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition ...


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