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decided: April 22, 1976.


Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1972, No. 2294, in case of Dorothy McMillan and William C. McMillan, her husband v. Mountain Laurel Racing, Inc., a corporation; Washington Trotting Association, Inc., a corporation; and Global Development Corporation, a corporation and Universal Security Consultants, Inc., a corporation; Arthur G. Cohen, trading and doing business as Universal Security Consultants; and Harry M. Stevens, Inc., a corporation, additional defendants.


John E. Evans, Jr., with him Dale T. Lias, and Evans, Ivory & Evans, for appellants.

Arthur R. Gorr, with him Daniel B. Winters, William J. Lancaster, James A. Beinkemper, and Stein & Winters, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Dissenting Opinion by Price, J. Jacobs, J., joins in this dissenting opinion.

Author: Van Der Voort

[ 240 Pa. Super. Page 251]

The instant appeal arises, after post-trial motions, from the entry of a compulsory non-suit, at the close of the plaintiffs' evidence on liability. The case involves a suit for damages arising out of injuries suffered by the appellant wife, Dorothy McMillan, at the Meadow Lands, a horse racing track in Washington County. The appellees-defendants are: the Washington Trotting Association -- the owner of the racetrack; Global Development Corporation -- the owner of stock of Washington; and Mountain Laurel Racing, Inc. -- the lessee of the track, conducting racing meets as well as betting operations.

Additional defendants were Universal Security Consultants, Inc., and Arthur G. Cohen, trading and doing business as Universal Security Consultants, who provided security services at the track, and Harry M. Stevens, Inc., lessee of refreshment stands in the grandstand of the Meadow Lands. Because of the nature of the disposition of the case by non-suit in the court below, the issue of liability of the additional defendants could not be determined as the original defendants had no need to present their actual defense. None of the parties to this appeal discuss any issue relating to the possible liability of the additional defendants since the sole question on appeal is whether the non-suit was properly entered at the conclusion of production of the plaintiff's liability evidence.

A non-suit should be entered only in a clear case. DiGiannantonio v. Pittsburgh Railways Company, 402 Pa. 27, 166 A.2d 28 (1960); Dunmore v. McMillan, 396 Pa. 472, 152 A.2d 708 (1959). As our Court said in Borisoff v. Penn Fruit Company, Inc., 165 Pa. Superior Ct. 572, 574, 69 A.2d 167 (1949):

". . . a non-suit can be entered only when it is inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing

[ 240 Pa. Super. Page 252]

    principles of law, after viewing the evidence in the light most advantageous to the plaintiff, could determine in his favor the controlling issues involved."

See also De Gregoris v. Stockwell Rubber Company, Inc., 235 Pa. Superior Ct. 71, 340 A.2d 570 (1975); Denver v. Sharpless, 191 Pa. Superior Ct. 554, 159 A.2d 7 (1960). Of course, the plaintiff must be given the benefit of all favorable testimony and every reasonable inference of fact arising therefrom and all conflicts therein must be resolved in favor of the plaintiff. Miller v. McMinn's Industries, Inc., 410 Pa. 234, 188 A.2d 738 (1963); Idlette v. Tracey, 407 Pa. 278, 180 A.2d 37 (1962). If the trial court determines, in entering non-suit, that plaintiff's evidence showed his own contributory negligence or assumption of the risk, such disabling factors must appear so irrefutably from the evidence that to permit a jury to absolve plaintiff would be to elevate caprice over legally conclusive fact. Leaman Transportation Corporation v. Philadelphia Transportation Company, 358 Pa. 625, 57 A.2d 889 (1948). The evidence of contributory negligence or assumption of the risk must be clear and undisputed before non-suit can be entered. Borisoff v. Penn Fruit Company, Inc., supra. The lower court held in the instant case that plaintiff-appellant had failed to prove any negligence on the part of any defendant, and moreover declared that Mrs. McMillan was contributorily negligent and had assumed the risk of harm as a matter of law. Mindful of the above-stated principles of law, we find that we cannot agree with the lower court's entry of compulsory non-suit in this case.

Our review of the evidence presented by appellants shows facts which, when taken alone, are supportive of plaintiff's theory of negligence. The appellant wife's accident occurred on June 9, 1971, when she attended a night session of races as a patron at the Meadow Lands track. Accompanied by her husband and a family friend, Mrs. McMillan (appellant) was situated at a table at one

[ 240 Pa. Super. Page 253]

    end of a very large room which the parties describe as the ground floor of the grandstand. The room was two hundred and fifty (250) feet long and from eighty (80) to one hundred and twenty-five (125) feet wide. There were thirty-two (32) to thirty-four (34) betting windows situated like an island in the middle of the floor. In addition, four (4) refreshment stands, each about twenty-five (25) feet long, were situated along one side of the room.

On the evening in question, Mountain Laurel had approximately forty-five (45) employees employed in the above-described room. Washington also had employees active on the premises that night, including a clean-up crew of several persons. Under Washington's lease with Mountain Laurel the former was responsible for cleaning and maintenance. A room was provided for a maintenance official.

At the time of the accident, the McMillans and their companion had been at the track for two and a half hours. Testimony showed that about a thousand other patrons attending the races were situated in the same first floor area of the track. All four refreshment stands were in operation.

The testimony offered by the plaintiffs showed that the floor of the room in question became increasingly littered as the races progressed. This litter included tickets, paper food and beverage containers and amounts of various types of liquid refreshments (including beer, soft drinks and coffee) which had either been purposely discarded or accidentally dropped by patrons. As Mrs. McMillan returned to her table after placing a wager at one of the ticket windows, she had to pass by the front of a refreshment stand. In so passing, she slipped and fell, suffering injuries. Her testimony concerning the fall is well summarized by the following answer she offered in response to a question as to what occurred:

"I slipped and I fell, and it was something on the floor, whether -- my trousers was wet in the back --

[ 240 Pa. Super. Page 254]

    but I don't know what I slipped on. There was paper cups and stuff all over the floor, but I don't know what I slipped on."

Under further questioning, she expressed the belief that she had been caused to fall by the liquid, cups, papers, or tickets on the floor, although she could not pinpoint the exact substance or object she had been caused to slip on.

The appellants also offered other testimony and evidence supportive of their theory of negligence. Testimony was entered that the floor was quite littered and wet, especially in the area of the refreshment stands. Moreover, the floor, according to the evidence offered, was of a shiny composition surface which became slippery when wet, and was slippery at the time and place of the fall. Also, plaintiff's testimony showed that the floor area was not cleaned during the races and ...

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