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PASTUSZEK v. MURPHY PLYWOOD CORP. (06/22/71)

decided: June 22, 1971.

PASTUSZEK, APPELLANT,
v.
MURPHY PLYWOOD CORP.



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1965, No. 5547, in case of Harry Pastuszek, Sr. v. Murphy Plywood Corp. and Del-Penn Steel Co., a/k/a Kaplan Metals Co. and Tacony Industrial Storage Co. and Kaplan Metals Co.

COUNSEL

Michael M. Goss, with him Weinstein & Bobrin, for appellant.

Albert L. Bricklin, Roger S. Wolfe, David J. Griffith and Edward B. Joseph, with them E. Dyson Herting, Bennett, Bricklin & Salitzburg, Liebert, Harvey, Herting, Short & Lavin, and Kaliner and Joseph, for appellees.

Wright, P. J., Watkins, Montgomery, Jacobs, Spaulding, and Cercone, JJ. (Hoffman, J., absent). Opinion by Watkins, J.

Author: Watkins

[ 219 Pa. Super. Page 61]

This is an appeal from an order dismissing appellant's motion for a new trial in a negligence suit involving four defendants. Appellant, Harry Pastuszek, Sr., had come to the warehouse owned by appellee, Tacony Industrial Storage Company (Tacony) and leased in different sections by the other appellees. Appellant was invited by appellee, Murphy Plywood Company, to inspect plywood. After appellee had taken appellant to the plywood, Murphy's officer, Mr. Murphy, then announced that he had to answer the telephone. He advised appellant to continue to inspect and count the plywood. While Pastuszek was engaged in the counting of the plywood, he fell into a manhole which was not securely covered, and its location half lit. The manhole was located in the aisleway between the plywood storage area leased by appellee Murphy and that area leased by appellee Del-Penn Steel Company, a/k/a Kaplan Metals Company. At the time of his fall Pastuszek contends that he was engaged in the counting and inspecting of the plywood which he was going to buy from Murphy. He alleges that he did not see the covered manhole until after he fell into it.

At trial, appellant gave evidence to the above. At the close of his testimony, the appellee first moved for a compulsory non-suit, and when the trial judge recommended it, a directed verdict. The motion for a directed verdict was granted. This appeal followed.

The court below based its action upon two findings: (1) that a prima facie case of negligence had not been made out by plaintiff, and (2) even if it had, the plaintiff was contributorily negligent as a matter of law. We disagree.

The appellees contend that the plaintiff did not make out a prima facie case. The requirements for a prima facie case in negligence is to prove that one or more of

[ 219 Pa. Super. Page 62]

    the defendants had a duty to the plaintiff and that a breach of such duty was the proximate cause of the plaintiff's injury. When a defect to real estate is involved, in order to show breach, one must show that defendant had notice of such defect.

In order to have a case go to the jury, one must at least show a prima facie case. The burden of proof required to show a prima facie case is that, if the facts are taken in a light most favorable to the party advancing the argument, the question is at least such that reasonable men could differ as to result. In order to show a prima facie case, it is not necessary to prove that the facts alleged are exclusively in favor of negligence but only that negligence is a possible inference. Stimac v. Barkey, 405 Pa. 253, 174 A.2d 868 (1961). In Stimac, supra, the Supreme Court quoted from the opinion of Lear v. Shirk's Motor Express Corp., 397 Pa. 144, 152 A.2d 883 (1959) at page 257, which summarizes well the criterion for evidence required to have a prima facie case: "A plaintiff is entitled to have his case considered by the jury even though he does not show that the only reasonable inference is that defendant's negligence was the proximate cause of the accident. It is enough that he produces evidence which may properly be found by the jury to justify an inference that ...


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