Appeal from order of Court of Common Pleas of Mercer County, June T., 1965, No. 220, in case of Harold R. Watkins, individually, and Harold R. Watkins, executor of estate of Bessie B. Watkins, deceased v. Sharon Aerie No. 327 Fraternal Order of Eagles.
Michael Halliday, for appellant.
Albert E. Acker, with him Cusick, Madden, Joyce, Acker and McKay, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Musmanno dissents.
Plaintiffs appeal from an Order of the lower Court, which (1) refused their motion to set aside a judgment of non-suit entered for defendant and (2) dismissed their motion for a new trial.
Appellants brought an action of trespass to recover for injuries sustained by Bessie B. Watkins*fn* on premises which were under defendant's control and for the consequential damages suffered by her husband, Harold R. Watkins.
On the evening of April 18, 1963, Mr. and Mrs. Watkins and a friend, Mrs. Bower, went to the Eagles Club on Main Street in Sharon, Pennsylvania, to play Bingo. They arrived at the Club about 7:30 P.M. and played Bingo until the conclusion of the games. At approximately 10:00 or 10:15 P.M. the plaintiffs and Mrs. Bower started to leave the Club. As Mrs. Watkins was leaving, she fell, sustaining severe injuries which resulted in this litigation. At the conclusion of appellants' evidence, the Court entered a non-suit which was sustained by the Court en banc.
The law applicable to all the questions raised in this appeal is well settled, although its application to factual situations is at times difficult.
(1) Defendant is not an insurer and the mere happening of an accident is not evidence or proof of negligence. O'Neill v. Batchelor Bros., Inc. Funeral Homes, 421 Pa. 413, 219 A.2d 682; Cuthbert v. Philadelphia, 417 Pa. 610, 209 A.2d 261; Stenson v. Rechutti, 416 Pa. 548, 207 A.2d 760; Markle v. Robert Hall Clothes, 411 Pa. 282, 191 A.2d 374; Stimac v. Barkey, 405 Pa. 253, 174 A.2d 868.
(2) Defendant owes a duty to an invitee (a) to keep the premises in a reasonably safe condition and (b) to warn an invitee of latent defects or dangers which it knows exist or in the exercise of reasonable care should have known. Polinelli v. Union Supply Co., 403 Pa. 547, 170 A.2d 351; Stimmel v. Kerr, 394 Pa. 609, 148 A.2d 232; Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A.2d 123.
(3) A plaintiff has the burden of proving by a fair preponderance of the evidence that the defendant was negligent and that its negligence was the proximate cause of plaintiff's injury. Stenson v. Rechutti, 416 Pa., supra; Markle v. Robert Hall Clothes, 411 Pa., supra; Stimac v. Barkey, 405 Pa., supra; Loeb v. ...