Appeal from judgment of Court of Common Pleas No. 3 of Philadelphia County, March T., 1961, No. 1963, in case of Wilhelmina Chisholm Jones, administratrix of estate of William Chisholm, deceased v. Elizabeth Treegoob et al.
Frank Bielitsky, with him Meranze, Katz, Spear & Bielitsky, for appellants.
Benjamin Pomerantz, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Hannum, J. Wright, P. J., Hoffman and Spaulding, JJ., would have affirmed on the opinion of Judge Griffiths of the court below.
[ 212 Pa. Super. Page 484]
This is an appeal by the defendants from a judgment entered in favor of the plaintiff in an action of trespass. This case was originally argued on June 15, 1967*fn1 and an opinion entered in which judgment was reversed and entered for the defendants.*fn2
However, a reargument was ordered, which was held on March 21 of this year.
William Chisholm, now deceased from causes not related to this action, was walking in a southeasterly direction on the southwest side of Lancaster Avenue, Philadelphia, Pennsylvania, on September 12, 1960 at
[ 212 Pa. Super. Page 485]
about ten to eleven a.m. At that time the wind was blowing at 34 to 35 miles per hour with gusts up to 45 to 46 miles per hour.*fn3 As he passed in front of the defendants' furniture store located at 4090 Lancaster Avenue, a large plate glass window in the front of the defendants' premises blew out and struck him, knocking him to his knees and severely lacerating his leg. The jury rendered a verdict for the plaintiff in the sum of $5,000.00. The court below dismissed the defendants' motions for judgment n.o.v. and for a new trial and entered judgment on the verdict. This appeal followed.
The plaintiff's alleged cause of action was two-fold. He alleged that, because the building had been constructed by the defendants in an improper manner, they were responsible for such negligent construction and, secondly, because they were the occupiers of the building they were negligent in failing to protect said windows so as not to harm the public and in failing to take cognizance of the notice of oncoming high winds.
Before considering the specific contentions of the parties, there are several general principles of law which are applicable to the case. "It is, of course, hornbook law that the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, but he is not entitled to inferences which amount merely to a guess or conjecture: Bohner v. Eastern Express, Inc., 405 Pa. 463, 466, 469, 175 A.2d 864." (Emphasis in the original): Wood v. Conneaut Lake Park, Inc., 417 Pa. 58, 209 A.2d 268
[ 212 Pa. Super. Page 486]
(1965), cited with approval in Flaherty v. Pa. Railroad Co., 426 Pa. 83, ...