Summary
In Yearsley v. American Stores Co., 97 Pa. Super. 275 (1929), a woman plaintiff caught the heel of her shoe in a register grating.
Summary of this case from Ramsey v. Mellon National Bank Trust CompanyOpinion
October 15, 1929.
October 30, 1929.
Negligence — Grating in floor — Usual construction — Wedging of small heel.
In an action of trespass to recover damages for personal injuries, there was evidence that the plaintiff was injured in the defendant's store when she walked over a grating, which was flush with the floor, and her small, tapered heel went through an interstice and became wedged in it. There was no evidence that the construction of the grating, either in the way it rested in the opening, or the size and construction of its interstices, was unusual and not in accord with the ordinary and accustomed construction of such appliances. Under such circumstances a non-suit was properly entered. Practice — Non-suit.
A non-suit will be entered where a plaintiff's case presents no facts upon which a jury can make a finding of negligence against the defendant.
Appeal No. 143, October T., 1929, by plaintiff from order of C.P., No. 2, Philadelphia County, June T., 1928, No. 11,229, in the case of Marian Yearsley v. American Stores Company, Inc., a Delaware Corporation.
Before PORTER, P.J., TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Trespass to recover damages for personal injuries. Before GORDON, JR., J.
The facts are stated in the following opinion of the court below:
The evidence in this case shows that the defendant company maintained, in the floor of the store in which the accident happened, a register, the iron grating of which was flush with the floor, and fitted snugly, by means of a deep flange, in the opening which it covered. The grating was removable only by being lifted up out of the opening. At the trial, there was no evidence that the construction of the grating, either in the way it rested in the opening or the size and construction of its interstices, was usual or not in accord with the ordinary and accustomed construction of such appliances. The plaintiff entered the store, wearing a pair of shoes, the heels of which were so tapered and small at the bottom that, as she walked over the grating, one heel went through an interstice, and became wedged in it. This threw her to the floor and caused the injuries complained of.
The only possible theory on which recovery could have been had was that the openings in the grating were unusually and dangerously large — that is, that the grating was constructed differently from those usually used for such purposes; and the plaintiff failed to prove anything upon this point, or to show a defect of any kind in the register. The proximate cause of her fall, therefore, was not the fact that, the register in falling came out of its position because it was not fastened to the floor, as plaintiff contended, but rather the wedging of her narrow heel in a grating which the evidence fails to show was in any way different from those ordinarily used for such purposes. The plaintiff's case presented no fact upon which the jury could have made a finding of negligence against the defendant, and hence the nonsuit was entered.
For this reason the motion to take off the nonsuit was overruled.
The court entered judgment of nonsuit which it subsequently refused to strike off. Plaintiff appealed.
Error assigned, was the refusal of plaintiff's motion to strike off the nonsuit.
James Yearsley, and with him Maurice G. Weinberg, for appellant.
Richard A. Smith, and with him Louis Wagner, for appellee.
Argued October 15, 1929.
The judgment is affirmed on the opinion filed by Judge GORDON upon the refusal of the court below to take off the non-suit.