Appeal from judgment of Court of Common Pleas of Butler County, June T., 1965, No. 110, in case of Edmond Kuminkoski and Nora Kuminkoski, his wife v. Harold H. Daum, John C. Daum, H. Carl Daum et al.
A. R. Cingolani, Jr., with him Cingolani & Cingolani, for appellants.
Hugh S. Millar, with him Brandon, Millar & Rockenstein, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Eagen, Mr. Justice O'Brien and Mr. Justice Roberts concur in the result. Mr. Justice Jones and Mr. Justice Cohen dissent. Dissenting Opinion by Mr. Chief Justice Bell.
On August 23, 1964, Mrs. Nora Kuminkoski entered the business establishment of the defendant Butler Packing Company to purchase a supply of meat. Emerging from the store, she fell on the outside steps leading down to the ground. She brought suit against the defendant, charging negligence in its allowing a dangerous substance to accumulate on the steps, and in not providing a handrail which she might have grasped to save herself from a fall which could be caused by slipping on the mixture of sawdust, wood chips and fine gravel which coated the treads of the descending exit.
At the ensuing trial the jury was unable to reach an unanimous verdict and was discharged. The defendant moved for judgment on the whole record under the Act of April 20, 1911, P. L. 70, 12 P.S. § 684. The judge granted the motion. The plaintiff has appealed.
The judgment entered by the court below cannot be affirmed under existing law. The Superior Court, following utterances of this Court to the same effect, but not as succinctly phrased, well declared in the case of Johnson v. Dew, 204 Pa. Superior Ct. 526, that: "Judgment can be entered for the defendant on the whole record only if the evidence, viewed in the light most advantageous to the plaintiff, resolving all conflicts therein in his favor, and giving him the benefit of every fact and inference pertaining to the issues involved which may be reasonably deduced therefrom, would not justify a verdict and judgment in his favor."
The record in the case at bar does not justify the conclusion that a verdict for the plaintiff could not be sustained by the evidence. It shows that for a long time prior to the plaintiff's accident, the defendant was accustomed to sprinkling the floor of its store
with sawdust. It was clear also that this sawdust was tracked outside and some of it fell to the outside steps. Unbeknownst to the plaintiff, and without her having any chance to become acquainted with that fact, some wood chips and fine gravel commingled with the sawdust on the steps to form an unfirm surface. In leaving the store, the plaintiff was carrying a large package, this being the meat she had purchased therein, and thus could not minutely perceive the constituency of the substance which passed under each footstep. Under such circumstances, the plaintiff could not, as a matter of law, be charged with contributory negligence in not having seen, even assuming it was ocularly discernible, the mixture of the elements which pomaded the steps.
The court below, in entering judgment for the defendant, said that the plaintiff had not met the burden of proof of establishing an unsafe condition. In the case of Katz v. John Wanamaker Phila., Inc., 381 Pa. 477, the trial court directed a verdict for the defendant, asserting that the evidence adduced by the plaintiff was insufficient to establish liability on the part of the defendant. There, as here, the plaintiff had fallen on slippery steps under conditions not dissimilar to the ones at bar. In reversing the lower court, this Court said: "From the testimony of the two women the jury could have found that there was a considerable quantity of dirt as well as water on the steps, and that the combination of the two could form a slimy and slippery condition. Plaintiff's evidence must be considered in the ...