Summary
In Doerflinger v. Davis, 412 Pa. 401, 194 A.2d 897 (1963), a box six feet high and 2 1/2 feet wide containing a bicycle was left standing beside an aisle in a department store and fell on the plaintiff.
Summary of this case from Paul v. Hess Brothers, Inc.Opinion
Argued October 11, 1963.
November 12, 1963.
Negligence — Evidence — Sufficiency — Fall of heavy box beside aisle in department store.
1. In this appeal from a judgment on a verdict for the plaintiff, in which it appeared that a large and heavy box which was standing on the floor beside an aisle in defendant's store fell on plaintiff's head and shoulder and the defendant said "It shouldn't have been there in the first place" and, after the accident, ordered it removed, it was Held, in the circumstances, that the evidence of negligence was sufficient to take the case to the jury. [402-4]
2. Stewart v. Morow, 403 Pa. 459, distinguished. [403]
Practice — Trial — Charge of court — Use of illustrative example — Charge on present worth.
3. An "example" charge is proper if it is given by way of illustration or example and the court makes clear to the jury that the example is illustrative only and that it is solely for the jury to decide what the verdict should be and for whom. [403-4]
4. Concrete illustrations may be used by the trial judge in explaining "present worth". [404]
Mr. Justice BENJAMIN R. JONES dissented and would enter judgment non obstante veredicto.
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeals, Nos. 191 and 195, March T., 1963, from judgments of Court of Common Pleas of Allegheny County, Jan. T., 1959, No. 2006, in case of Betty J. Doerflinger and Eugene Doerflinger, her husband, v. Sidney D. Davis and Meyer Feinberg, individually and as partners trading as The Sterling Company. Judgment affirmed.
Trespass for personal injuries. Before VAN DER VOORT, J.
Verdict entered for plaintiff wife in amount of $18,500 and for plaintiff husband in amount of $950 and against defendants, defendants' motions for judgment non obstante veredicto and for new trial refused and judgments entered on the verdicts. Defendants appealed.
J. Lawrence McBride, with him Hamilton A. Robinson, and Dickie, McCamey, Chilcote Robinson, for appellants.
Melvin Schwartz, with him Alexander Cooper, for appellee.
Defendant appeals from a judgment entered for plaintiff in an action of trespass for personal injuries. Defendant asks for judgment non obstante veredicto or alternatively a new trial.
The jury could have found the following facts: A very large and heavy box (the box was 6 feet high and 2 1/2 feet wide), containing a bicycle, was left standing on the floor beside an aisle in defendant's store. The box fell on plaintiff's head and shoulder causing very severe injuries. There was no evidence as to whether the box was resting on its own weight or was leaning against the nearby wall, or was fastened or secured in any way, or exactly what caused the box to fall. However, the testimony disclosed that the defendant said "It shouldn't have been there in the first place"; and after the accident, ordered it removed.
While neither res ipsa loquitur nor the exclusive control doctrine applies, we believe that the totality of the aforesaid facts and circumstances amount to evidence of negligence which, though very slight, was sufficient to take the case to the jury. The case is, on its facts, distinguishable from Stewart v. Morow, 403 Pa. 459, 170 A.2d 338, where a small mirror, which rested on a mantelpiece in defendant's home, suddenly fell and injured plaintiff (a maid) while she was performing her household cleaning duties. The Court in that case correctly stated (1) that neither res ipsa loquitur nor the exclusive control doctrine applied; and (2) that there was not sufficient evidence of negligence to take the case to the jury.
The difference in the size and potentially dangerous condition of this huge box by the aisle of the store, and the small mirror on a mantel in the Stewart home, together with the other facts and circumstances above mentioned are sufficient to distinguish the Stewart case from the instant case.
Defendant asks for a new trial because of an alleged error in the Court's charge on "present worth," in which charge the Judge included an "example" to aid the jury. An "example" charge is proper if it is given by way of illustration or example and the Court makes clear to the jury that the example is illustrative only and that it is solely for the jury to decide what the verdict should be and for whom: Littman v. Bell Telephone Co., 315 Pa. 370, 172 A. 687; Reed v. American Dyewood Co., 231 Pa. 431, 80 A. 873. In Littman v. Bell Telephone Co., supra, the Court said (page 378): "Concrete illustrations may be used by the trial judge in explaining 'present worth.' " Furthermore, we find no basic or reversible error in the charge.
Judgment affirmed.
Mr. Justice BENJAMIN R. JONES dissents and would enter judgment n.o.v.