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HARCLERODE v. G. C. MURPHY COMPANY (03/24/66)

decided: March 24, 1966.

HARCLERODE, APPELLANT,
v.
G. C. MURPHY COMPANY, INC.



Appeal from judgment of Court of Common Pleas of Huntingdon County, Feb. T., 1964, No. 23, in case of Leah Harclerode v. G. C. Murphy Company, Inc.

COUNSEL

Samuel H. Stewart, with him R. Merle Heffner, for appellant.

Morris M. Terrizzi, for appellee.

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

Author: Montgomery

[ 207 Pa. Super. Page 401]

Following a jury verdict for appellant-plaintiff in an action of trespass for personal injuries judgment n.o.v. was entered for the appellee-defendant because of plaintiff's failure to establish that the negligence of the defendant caused her injuries. This appeal followed.

Under such circumstances the record must be read in the light most favorable to plaintiff, the winner of the verdict, and she is entitled to the benefit of all reasonable inferences of fact to be drawn therefrom, and to have all conflicts in the testimony resolved in her favor. Using this rule as our guide the facts may be stated as follows. Between 11:00 and 11:30 o'clock on the morning of February 10, 1962, plaintiff, Leah Harclerode, 54 years of age, entered defendant's store in Mount Union, Pennsylvania, for the purpose of making a purchase. Snow had fallen during the preceding night but there was no precipitation at the time she entered the store, and although there were some walks from which the snow had not been shoveled, it had been cleared from the sidewalks adjacent to defendant's

[ 207 Pa. Super. Page 402]

    store. Immediately inside all entrances to the store there were rubber mats, on one of which plaintiff scraped her feet. After entering the store plaintiff traveled a distance of approximately thirty feet along an aisle and as she passed the checkout counter she made a left turn into another aisle, slipped and fell. At no time before she fell did she notice any water or slush on the floor but, when she was helped to her feet, her clothing was wet and her witness, Mrs. Knepp, testified that the floor was wet and also plaintiff's face was "dabbed . . . with a hankie to take the wet off . . ." Mr. Luke Riley, the store manager, had passed this area one or one and one-half minutes before plaintiff fell and was standing about six feet off this area when plaintiff fell, but he saw no water on the floor before or after the accident.

The jury found, in answer to specific questions put to it, that there was water on the floor at the time and place where plaintiff fell, that it was the proximate cause of plaintiff's fall, that Mr. Riley did not know of the presence of the water and that plaintiff was not guilty of contributory negligence.

In the absence of any evidence to indicate that defendant was actively negligent in creating the condition or had actual knowledge of its existence, plaintiff's case must be supported by evidence to prove that the condition was unsafe and that defendant had constructive notice of it, the burden of proof of which was on the plaintiff. Parker v. McCrory Stores Corporation, 376 Pa. 122, 101 A.2d 377 (1954). Such a defendant is not an insurer; it owed to the plaintiff only the duty of reasonable care in the circumstance, namely, to correct any unsafe condition which was discoverable by the exercise of reasonable care and diligence. Parker v. McCrory Stores Corporation, supra.

Proof of the happening of an accident is not sufficient to establish plaintiff's ...


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