Appeal from order of Court of Common Pleas of Westmoreland County, April T., 1966, No. 763, in case of Laura May Hampton v. S. S. Kresge Company, a corporation t/d/b/a K-Mart and Merritt Corporation.
Thomas J. Godlewski, with him O'Connell, Silvis & Godlewski, for appellant.
Christ. C. Walthour, Jr., with him Kunkle, Walthour and Garland, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J. Jacobs, J., dissents.
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Appellant contends that she produced sufficient evidence to have her case go to a jury on material issues of fact, and that the trial court committed reversible error in granting defendants' motion for compulsory non-suit.
An action in trespass was instituted by Laura May Hampton as a result of injuries sustained in an accident occurring on June 26, 1964. At approximately 9:00 p.m. on the evening of the accident, Mrs. Hampton was shopping in a K-Mart self-service department store. She was accompanied by her fourteen-month old daughter, her mother-in-law (now deceased), and her husband's aunt, Dorothy Hampton. While walking through one of the aisles of the store, appellant was struck by five or six plastic toy boats and wooden oars, which had fallen from a shelf overhead. On November 8, 1971, trial was held on the issue of liability alone before the Honorable Earl S. Keim of the Common Pleas Court of Westmoreland County and a jury. After plaintiff rested, the defendants moved for non-suit. The trial court granted defendants' motion and discharged the jury. It is from a court en banc denial of plaintiff's motions to strike the non-suit and grant a new trial that this appeal followed.
Plaintiff testified during the course of the trial that she was in the aisle looking for swimming equipment for her daughter. She said that she was in the aisle for about ten minutes and noticed some toy boats stacked on the top row of a shelf protruding out into
[ 224 Pa. Super. Page 546]
the aisle. The boats were approximately nine feet off the ground. Appellant testified that the boats were shaped like rowboats and were approximately five feet long and two and one-half feet wide. They were stacked upside down and placed one inside the other. The back of the boats rested on the rear perpendicular portion of the shelf and protruded upward to the rear; while the pointed nose of the boat angled downward. In this slanted position, the boats rested on the shelf. No one was seen in the area of the boats during the time appellant was in the aisle. Appellant's aunt testified in the same manner as to the approximate dimensions, position, and undisturbed nature of the boats, as well as the observed estimations of the dimensions of the shelves upon which the boats were situated. She further testified that she saw the boats in the last immeasurable moment as they slid from their resting place and fell to the floor striking appellant.
Appellant submitted an offer of proof that an expert witness, a safety engineer, was ready to testify as to the center of gravity of said boats and the tendency of those boats to fall from their allegedly precarious position; he was not permitted to testify. The trial judge ruled that as no evidence was produced as to the weight of the boats and as precision in the dimensions of the boats and shelf were lacking such testimony would be mere conjecture.
Finally, appellant called as on cross-examination the store manager of K-Mart, who testified that in his opinion it would be impossible for boats to be stacked in the manner indicated by plaintiff at the height asserted. Though plaintiff called the store manager as on ...