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WINKLER ET VIR v. SEVEN SPRINGS FARM (06/28/76)

decided: June 28, 1976.

WINKLER ET VIR
v.
SEVEN SPRINGS FARM, INC., APPELLANT



Appeal from judgment of Court of Common Pleas of Somerset County, No. 211 C.D. of 1973, in case of Janina Winkler and Edmund Winkler, her husband v. Seven Springs Farm, Inc., a corporation.

COUNSEL

Chester S. Fossee, with him Murovich, Reale & Fossee, for appellant.

Alexander Ogle, with him C. Joseph Recht, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 240 Pa. Super. Page 643]

Mrs. Winkler, plaintiff below, sustained personal injuries as a result of a fall out a screen door on appellant's premises. Appellant Seven Springs Farm, Inc., argues to this Court that its motion non obstante veredicto should have been granted because the plaintiff failed to show that any negligence on the part of appellant caused her fall. We agree that appellant should not be held liable for Mrs. Winkler's injuries.

In considering a motion for judgment n.o.v., the

[ 240 Pa. Super. Page 644]

    evidence, together with all reasonable inferences capable of being drawn therefrom, must be viewed in the light most favorable to the verdict winner. Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973). The court must find and consider only that evidence which supports the verdict, and all conflicts must be resolved in favor of the prevailing party. Moyer v. Ford Motor Co., 205 Pa. Superior Ct. 384, 209 A.2d 43, allocatur refused, 205 Pa. Superior Ct. xxxvii (1965). Where the evidence in the case is insufficient to sustain the verdict against the losing party, however, judgment will be entered for the appellant despite the verdict to the contrary. Kolb v. Hess, 227 Pa. Superior Ct. 603, 323 A.2d 217, allocatur refused, 227 Pa. Superior Ct. xxvi (1974); Eldridge v. Melcher, 226 Pa. Superior Ct. 381, 313 A.2d 750, allocatur refused, 226 Pa. Superior Ct. xxx (1973); Moyer v. Ford Motor Co., supra. In the present case, therefore, this Court must consider whether the evidence, reviewed in the light of these principles, can in any way support a finding of liability against the appellant.

Seven Springs Farm is a mountain resort which operates, among other facilities, ten chalets for its guests. On August 25, 1971, Mrs. Winkler, a woman 62 years of age, together with four other ladies, arrived at Seven Springs intending to rent one of the chalets for a short holiday. Because the prior guests had not yet moved out, the ladies sat outside while the departing guests and appellant's employees who were cleaning the unit went in and out attending to their tasks. During this time no one experienced any difficulty with the front screen door which was in constant use. When Mrs. Winkler moved in with her party, she herself used the door without difficulty. A problem was first encountered when one member of the group, Mrs. Rosenberg, sought to leave. Although another lady had exited without incident only moments before, Mrs. Rosenberg was heard to swear at the screen door, complaining that it was stuck. She exited safely, however, and shortly thereafter Mrs. Winkler tried the screen door, finding it stuck. She

[ 240 Pa. Super. Page 645]

    pushed the screen door a number of times with her hand but it could not be moved, so putting her elbow against it she put her strength into another push and the screen door opened. Mrs. Winkler lost her balance as the screen door opened and fell out onto the step outside, breaking her ankle. Testimony further revealed that the chalet had been built about ten years earlier of a rustic wood construction and it had two exits. The exit where the accident occurred had a step between the screen door, which opened out, and the ground. It was also stated that it had rained earlier in the day on the date of the accident.

Appellee attempted to establish appellant's liability by proving negligence in allowing the screen door to become sticky and in failing to construct a platform immediately outside the door. Appellee agrees that a recovery based simply on the failure to provide a platform cannot be sustained, unless negligence can first be shown in respect to the sticky screen door. Zlates v. Nasim, 340 Pa. 157, 16 A.2d 381 (1940).*fn1 We are not persuaded that the evidence presented at trial in any way supports ...


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