Appeal from judgment of Court of Common Pleas No. 3 of Philadelphia County, March T., 1960, No. 909, in case of John F. Reardon v. Vincent C. Meehan and Mary V. Meehan.
Michael Shekmar, for appellants.
Herbert Somerson, for appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell and Mr. Justice O'Brien dissent.
This is an appeal from a judgment entered upon a verdict in a trespass action in favor of John F. Reardon (Reardon), and against Vincent Meehan and Mary Meehan, his wife (Meehans), in Court of Common Pleas No. 7 of Philadelphia County.
On October 31, 1959, Reardon, while delivering a case of beer to Meehans' home in Philadelphia, allegedly tripped on a fibre rug lying on the cement floor of the basement of that home as a result of which he fell and struck his eye causing serious physical injuries. In his complaint, Reardon alleged, inter alia, that his fall was due to Meehans' negligence in (a) failing to have said cellar properly lighted,*fn1 (b) maintaining and permitting to remain on the floor of said cellar a rug or carpet not securely or properly fastened to said cellar floor and (c) failing to warn (Reardon) of the dangerous condition of the cellar. After a trial before a court and jury, the jury rendered a verdict in Reardon's favor in the amount of $40,000. Motions for judgment n.o.v. and a new trial were dismissed, judgment was rendered on the verdict and from that judgment this appeal was taken.
Meehans challenge the validity of this judgment upon three grounds: (1) that there was no evidence of actionable negligence; (2) that the trial court erred in (a) permitting expert testimony as to the length of time the rug was curled prior to the accident and the causes and reasons for its inherently defective condition and (b) its instructions to the jury whether any changes had been made to the rug between the time of the accident and the trial.
The thrust of Meehans' argument for judgment n.o.v. is twofold: (1) that Reardon's allegation that Meehans negligently maintained and permitted the rug to remain on the floor without being properly fastened to the floor did not encompass maintenance of a rug with curled edges and (2) even if the rug was curled, proof was lacking that Reardon did trip on the curled portion of the rug. In evaluating this argument we
adhere to the well established rule that the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the verdict winner, Reardon.
We are of the opinion that the allegation in the complaint was sufficient to encompass Reardon's proof that this rug, unfastened to the cement floor, had curled at its edges projecting an obstacle to travel over the floor. Meehans' reliance on Gibbons v. The Harris Amusement Co., 109 Pa. Superior Ct. 484, 167 A. 250 (1933), is misplaced in view of the factual situation presented in the case at bar. In Gibbons Judge (later President Judge) Keller stated: "It [the rug] was not in a torn or curled up condition which might cause a patron of the theatre to trip as in Frater v. Kresge Co., 95 Pa. Superior Ct. 574" (at p. 487). Even though permitting a rug to remain unfastened to a floor per se ...