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JONES v. TREEGOOB (01/15/69)

decided: January 15, 1969.

JONES, APPELLANT,
v.
TREEGOOB



Appeal from order of Superior Court, Oct. T., 1967, No. 305, reversing 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, petitioner, v. Elizabeth Treegoob et al.

COUNSEL

Benjamin Pomerantz, for appellant.

Frank Bielitsky, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell and Mr. Justice Jones dissent.

Author: O'brien

[ 433 Pa. Page 227]

This is an appeal from the judgment n.o.v. entered by the Superior Court, reversing the judgment entered on the verdict in the Court of Common Pleas of Philadelphia County. Plaintiff's decedent (now deceased from causes not related to this action), on or about September 12, 1960, was walking in a southeasterly direction on the southwest side of Lancaster Avenue, Philadelphia, Pa., when a large glass window of defendants' premises 4090 Lancaster Avenue, blew out and struck him, causing him to suffer the injuries of which he complained.

The gravamen of the complaint was that the defendants, appellees here, the occupiers of the premises, constructed and maintained the building in a faulty manner so that a strong wind was able to cause the window to blow out rather than remain intact.

The liability aspects of the plaintiff's case were, for the most part, established by one Michael A. Gimbel, an expert witness. His testimony, in substance, was that by improper construction of doors, which abutted the window, they opened in and were not equipped with any safety catch; that the construction of the windows and doors resulted in the wind being funneled right into the door; that the wind velocity of between 35

[ 433 Pa. Page 228]

    m.p.h. and 45 m.p.h. would be sufficient to push open the abutting doors; that the doors being so opened would permit the wind to blow into the premises and exert pressure on all the inside walls and/or ceiling; that this built-up pressure would be sufficient and did, in his opinion, cause the glass in question to blow out and break. He further testified that other stores with doors opening in take precautions against the sort of accident that happened here, either by locking the doors or by setting up a partition inside the window so that the trapped wind blows against the partition rather than the window. The assistant manager of appellees' store, when called by appellant as on cross-examination, testified that prior to the accident he was given no instructions to take any precautions with regard to the door or the window.

The jury returned a verdict in favor of the plaintiff for $5,000. Defendants appealed to the Superior Court which, by a divided Court, reversed and entered judgment n.o.v. Three judges in that court would have affirmed on the opinion of Judge Griffiths in the Court of Common Pleas. Reargument was allowed in the Superior Court, and again the court divided 4-3, the result being the same. We granted allocatur.

Although it is not entirely clear, apparently the majority in the Superior Court based its opinion on two grounds. First, Mr. Gimbel's opinion as to the cause of the window-breaking was conjecture based on a theory unsupported by sufficient established facts. Assuming arguendo the validity of this very dubious proposition, it should be evident that such reasoning cannot support the result reached below. Mr. Gimbel's opinion was introduced into evidence without objection by the defendants. Any ...


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