Appeal from judgment of Court of Common Pleas No. 2 of Philadelphia County, March T., 1961, No. 602, in case of Joseph J. Farrell v. Celia K. Bonner and Mary Fay Bonner.
Esther R. Sylvester, with her John F. Naulty, for appellants.
Tom P. Monteverde, with him Schnader, Harrison, Segal & Lewis, for appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones and Mr. Justice Roberts concur in the result.
Joseph J. Farrell, the plaintiff in this case, is the son-in-law of Mrs. Celia K. Bonner and brother-in-law of Mary Fay Bonner, defendants. On April 30, 1960, Farrell appeared at the home of the defendants in Philadelphia to pick up a television set which he was to take to Atlantic City for Mrs. Bonner. He stepped on a rag throw-rug covering a landing at the foot of a stairway, the rug skidded, he lost his balance and fell heavily, sustaining injuries. In the lawsuit which followed he recovered a verdict of $10,000. The defendants have appealed, asking for judgment n.o.v., or, in the alternative, a new trial.
The defendants assert that the plaintiff failed to establish negligence. The Restatement 2d, Torts, § 342, provides: "A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved."
"A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor's consent." (Restatement 2d, Torts, § 330).
There was evidence that Mrs. Bonner was a devoted slave to neatness, shine and gloss. She waxed her floors once a week, applying wax with a generous hand and making it glisten with an electric polisher. As the wax accumulated and the floors achieved additional slickness, the daughter Mary, fearing involuntary gymnastics, urged her mother to lessen the intensity of her polishing process. The mother was not convinced. She said that "the lint from our rugs made the floors look gooey after it has been tracked through the house and onto the hardwood floors." Suiting action to the word, she took up the bottle of liquid wax and poured generously from it once or twice a week "to clean the lint that had gathered."
What Mary apprehended, came to pass. One day as she was descending the stairway, she stepped on a throw-rug covering the landing, and, in the instant, found herself on an unwanted, if not unexpected, skiing leap. Mary said she had the impression she was "on an icy street." What saved her from serious injury was that she had the presence of mind to grab a handrail as she flew by it. With further facts to substantiate her complaint, Mary asked her mother to "please stop waxing the floor." The mother, like an addict to an unbreakable habit, said she would desist from waxing, and then went back to waxing more enthusiastically than ever.
Then came the brother-in-law, Joseph J. Farrell, and he took a flight on the same rug. After he had landed, Mary saw on the floor a skid mark. At this point the wax had been applied with such liberality that the indentation caused by Farrell's journey cut into the wax ...