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PERCY DALLAS AND JOSEPHINE DALLAS v. F.M. OXFORD INC. (01/13/89)

filed: January 13, 1989.

PERCY DALLAS AND JOSEPHINE DALLAS,
v.
F.M. OXFORD INC., JOHN W MERRIMAN, JAMES K. STONE, DELAPLAINE MCDANIEL IND. AND D/B/A MCSTOME, M.A. KRAVITZ CO. A/K/A KRAFTCO INC. AND F.M.L. ASSOC. LTD., APPELLANT. PERCY DALLAS AND JOSEPHINE DALLAS, V. F.M. OXFORD INC., JOHN W MERRIMAN, JAMES K. STONE, DELAPLAINE MCDANIEL INDIVIDUALLY AND D/B/A MCSTOME AND OTIS ELEVATOR CO. AND M.A. KRAVITZ CO. A/K/A KRAFTCO INC. AND F.M.L. ASSOC. LTD. APPEAL OF OTIS ELEVATOR CO.; PERCY DALLAS AND JOSEPHINE DALLAS, V. F.M. OXFORD INC., JOHN W MERRIMAN, JAMES K. STONE, DELAPLAINE MCDANIEL IND. AND D/B/A MCSTOME, OTIS ELEVATOR CO., M.A. KRAVITZ CO. A/K/A KRAFTCO INC. AND F.M.L. ASSOC. LTD. APPEAL OF F.M. OXFORD INC., JOHN W MERRIMAN, JAMES K. STONE, DELAPLAINE MCDANIEL IND. AND D/B/A MCSTOME, M.A. KRAVITZ CO. A/K/A KRAFTCO INC. AND F.M.L. ASSOC. LTD.



Appeal from the Judgment of the Court of Common Pleas of Philadelphia County, Civil Division at No. 3796 November Term 1979.

COUNSEL

Theodore H. Lunine, Philadelphia, for F.M. Oxford Inc., et al.

Kevin Connors, Philadelphia, for Otis Elevator Co.

Christian C. Thompson, Philadelphia, for Percy and Josephine Dallas.

Montemuro, Beck and Popovich, JJ.

Author: Popovich

[ 381 Pa. Super. Page 90]

The plaintiffs (Percy and Josephine Dallas) recovered a verdict for damages for personal injuries suffered by Mr. Dallas when he was struck by the doors closing on an

[ 381 Pa. Super. Page 91]

    elevator in the Oxford Valley One building in Langhorne, Pennsylvania.

The court en banc denied motions for judgment n.o.v. and for a new trial by opinion, the judge who presided at the trial having resigned his office prior to ruling on post-verdict motions. The defendants*fn1 appeal from the judgment entered on the verdict and assign various errors to the lower court's refusal to grant judgment n.o.v. and/or a new trial. We affirm.

In considering a motion for judgment n.o.v., the evidence, together with all reasonable inferences to be derived therefrom, is to be considered in a light most favorable to the verdict-winner. Evans v. Otis Elevator Co., 403 Pa. 13, 17, 168 A.2d 573, 575 (1961). With the evidence viewed under such a standard, the material facts may be summarized as follows.

At approximately 11:30 a.m. on the 2nd day of December, 1977, Mr. Dallas and his wife entered the Oxford Valley One building. Their intention was to travel to the sixth floor and conduct business with a health insurance company. At the time, Mr. Dallas was 75 years old and walked with a cane to relieve the pressure on his arthritic knees. As the two entered the elevator, they did so without incident and ascended to the sixth floor. Mrs. Dallas stood about 12" to 18" from the door and her husband was "about a foot" behind her, a little to her left. There was no one else on the elevator.

As told by Mr. Dallas:

When the elevator reached the sixth floor, the doors opened, my wife stepped out and I followed her immediately.

[ 381 Pa. Super. Page 92]

I had my left foot out on the floor, over the crevice from the elevator and the floor, and I took my cane out and put it out on the floor and I was in the process of stepping out, when my right foot was up in the air, my left foot was on the floor, ...


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