Appeal from order of Court of Common Pleas of Lehigh County, June T., 1967, No. 15, in case of Anna Paul v. Hess Brothers, Inc.
Frank S. Poswistilo, with him J. Stephen Kreglow, James F. Menconi, and Brose, Poswistilo, LaBarr & Jacobs, for appellant.
James Knoll Gardner, with him Gardner, Gardner & Racines, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Watkins, J. Jacobs, J., dissents.
[ 226 Pa. Super. Page 93]
This is an appeal from the order of the Court of Common Pleas of Lehigh County granting a compulsory non-suit in favor of Hess Brothers, Inc., the defendant-appellee and against Anna Paul, plaintiff-appellant, in a trespass action; and from the refusal of the court below to take off the non-suit.
On May 29, 1965, the plaintiff, her husband, her daughter and a girl friend were shopping in Hess Brothers
[ 226 Pa. Super. Page 94]
Department Store in Allentown. The plaintiff and her husband were in the basement looking at dresses on the counter while the younger girls were shopping elsewhere in the store.
It is not disputed that while the plaintiff was examining dresses displayed on a counter or table, a full-sized mannequin which was standing on the same counter fell on the plaintiff striking her on the head and causing her injuries. Both plaintiff and her husband saw the mannequin fall. No one else saw it as there were no sales people or customers around at the time of the accident.
On October 15, 1970, a jury trial was called and at the close of the plaintiff's case the court granted the defendant's motion for a compulsory non-suit. The question before us is whether there was sufficient evidence at trial to warrant sending the case to the jury. The defendant argues that the plaintiff failed in any way to show that the defendant was at fault in the falling of the mannequin. The evidence was sketchy in that we only have the description that a "full-sized mannequin" fell and there was no evidence produced showing how or why it fell or what condition it was in before it fell. The accident occurred in 1965 and the trial was not held until 1970 so that it seems a fair conclusion that negotiations must have been taking place during the passing of so much time and this may have made it most difficult to obtain evidence.
On appeal from a compulsory non-suit the plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence, whether direct or circumstantial, and all conflicts must be resolved in the plaintiff's favor. McDonald v. Ferrebee, 366 Pa. 543, 79 A.2d 232 (1951). A compulsory non-suit may be ...