Appeal from judgment of Court of Common Pleas of Centre County, Jan. T., 1966, No. 190, in case of Pauline Kresovich et vir v. Catherine Jacklin Fitzsimmons et al.
Eugene W. Lederer, with him John W. Blasko, and Gill, Lederer & Sharp, and Love & Wilkinson, for appellants.
Edward L. Willard, for appellees.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Roberts.
Plaintiffs Pauline Kresovich and Joseph Kresovich, her husband, instituted a trespass action against the defendants Catherine Fitzsimmons and Fred Creamer, executors of the Estate of Margaret Brockerhoff (hereinafter called the Estate), to recover damages for injuries allegedly sustained by the plaintiff-wife when she fell while walking on a sidewalk in front of and abutting defendants' premises. The case was tried before a Judge and jury and resulted in a verdict in favor of the plaintiffs in the amount of $20,000. The Estate filed a motion for a new trial and for judgment non obstante veredicto. The Court below denied the motion
for a new trial, but granted judgment n.o.v. From the judgment n.o.v., the Kresoviches took this appeal.
In Cerino v. Philadelphia, 435 Pa. 355, 257 A.2d 571, this Court said (page 357): "In Firestone v. Schmehl, 420 Pa. 644, 218 A.2d 324, the Court said (page 646): 'It is hornbook law that in considering a motion for judgment n.o.v. 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 and any conflicts in the evidence must be resolved in his favor: Wood v. Conneaut Lake Park, Inc., 417 Pa. 58, 209 A.2d 268; Bohner v. Eastern Express, Inc., 405 Pa. 463, 175 A.2d 864.' However, he is not entitled to inferences which amount merely to a guess or conjecture: Wood v. Conneaut Lake Park, Inc., 417 Pa., supra."
Viewed in that light, the facts of this case are as follows:
The accident occurred on December 6, 1963, a clear day, at approximately 8:40 in the morning. At the time of the accident, Pauline Kresovich was walking from St. John's Roman Catholic Church in Bellefonte to her place of employment, Weis Market -- a distance of approximately one and one-half blocks. Mrs. Kresovich was well acquainted with the route she had to travel in order to go from the church to her place of employment, since she regularly attended morning religious services at St. John's prior to going to work, and she had been employed at Weis Market for approximately ten years prior to the day of the accident.
Plaintiff-wife testified that she crossed Bishop Street from south to north, at or near its intersection with Cherry Alley.*fn* It was her usual custom to walk near the store windows, or inside portion of the ...