and women who do not wear shoes of this type, yet the testimony of the manager of the retail store of a large national shoe manufacturer dealing in all types of shoes, that fifty percent to sixty percent of the women's shoes sold were of this type logically raises the inference that a substantial percentage of adult women who would visit defendant bank wore shoes of this type.
The mat was originally purchased in 1953. Plaintiff produced the seller-manufacturer of this mat who testified that in 1959 he visited the manager of defendant's bank to try to convince the bank to order a new mat because the heels worn by women in recent years had become thinner to the point where the perforations in the mat where too large for safety.
Both husband and wife testified that upon their reporting the fall to the defendant's manager of the bank he remarked that he would have to call his Pittsburgh office right away because there had been previous instances of women catching their heels in this mat.
While defendant denied such instances of prior notice, the credibility of this testimony was for the jury, and the plaintiffs are entitled to a consideration of all evidence, and all inferences arising therefrom, in the light most favorable to them. In any event the defendant, having admitted ownership and control, is charged with notice of the conditions on his property.
The question then becomes one of whether defendant, in maintaining a rubber door mat at a point just outside its glass front entry door, with perforations for draining of five-eighths inch diameter, was knowingly maintaining a condition involving an unreasonable risk to business visitors, and failed to exercise reasonable care to make the condition safe or to warn the visitors of peril which they might not discover.
Both parties agree that the rule governing defendant's liability is that stated in Restatement of the Law, Torts § 343. We agree that this expresses the law of Pennsylvania which controls in this diversity case. It has been specifically approved and adopted in Pennsylvania. See Wild v. Atlantic Refining Co., 195 F.2d 151 (3rd Cir., 1952), and Pennsylvania authorities therein cited.
Defendant has cited Nelson v. Facciola, 197 Pa.Super. 502, 179 A.2d 258 (1962), to the effect that women who wear spike heel shoes must bear the risk of injury. First it must be noted that the verdict under appeal in that case was rendered for the defendant. Furthermore, the case involved a woman plaintiff wearing heels three inches high, which measured one-eighth of an inch in width at the bottom. The plaintiff failed to use a hand rail provided. She was familiar with the nature of the stair treads, which consisted of two boards on each step laid side by side with a space between them one-eighth to one-fourth inch in width. She knew the steps, being those of the apartment house where she lived and which she traversed several times each day for one year prior to the accident. She admitted that she was aware of the construction of the steps and knew that her spike heels could catch in the crack. She admitted that she did not feel each step as she descended, nor did she calculate where to put her heel to avoid the known crack. The appellate court concluded that the questions of negligence and contributory negligence were properly submitted to the jury.
Defendant urges the rule of Yearsley v. American Stores Co., 97 Pa.Super. 275 (1929), upon us as the controlling law of Pennsylvania. There the appellate court in a per curiam decision adopted the short opinion of the trial judge who granted a non-suit. The woman plaintiff fell when her tapered heel caught in the interstices of a heating register grating on the floor of defendant's store. Plaintiff contended that the proximate cause of her fall was that the register, in falling, came out of its position because it was not fastened to the floor. The court disagreed and held that the cause was properly the wedging of her narrow heel in the grating. The court found that the plaintiff failed to show that the grating was unusual or the opening dangerously large, and therefore had failed to show plaintiff negligent.
In Calligan v. City of Monongahela, 272 Pa. 28, 115 A. 869 (1922), the verdict was for the plaintiff. Her shoe was described as "an ordinary woman's shoe, with a 'common sense' heel", which caught in a sidewalk pavement where round pieces of glass two and one-quarter inches in diameter had been placed in the pavement to allow light to enter the vault below. Several of these were missing and plaintiff's heel caught in one of these holes. The court said at p. 29, 115 A. at p. 869:
"That the city was charged with knowledge of the fact that women would use the pavement, and that a jury, in a proper case, might find it was negligence to leave a hole therein so large that heels of the usual size would probably catch in it and throw the wearer thereof to the ground, are propositions too plain to require argument."
We feel that this rule is applicable to the instant case.
The defendant relies on the dicta of the case wherein the Court speculated:
(p. 30, 115 A. p. 869) "Had the heel of plaintiff's shoe been unusually narrow, and, by reason thereof, it had caught in the hole * * * the court below could have given binding instructions for defendant, for a municipality is not obliged to anticipate the abnormal, however fashionable it may be or become; but here, as stated * * *, the heels were of the usual size worn by women, and it was therefore for the jury to say whether or not the hole was of such a character as to naturally grasp this kind of a heel."