Lanni v. Pennsylvania Railroad ( 1952 )

Opinion by

Mr. Justice Bell,

This appeal involves thé question of whether plaintiff’s proof of negligence was sufficient to take the case to the jury or, more particularly, whether the evidence of constructive notice was sufficient.

Plaintiffs brought an action of trespass for injuries to the wife-plaintiff which resulted from a fall on the station driveway of the defendant at North Philadelphia Station, Philadelphia. They alighted at North Philadelphia Station on September 8, 1946, at approximately 3:30 p.m. They walked from the station platform to one of the sidewalks just outside the station building. They then stepped from the sidewalk curb down onto the station driveway at a place where motor vehicles were very frequently driven and ofttimes stopped - or parked. Mrs. Lanni’s foot slipped upon a spot of oil or grease (hereinafter referred to as a grease spot) which was' in the station driveway and she fell onto the driveway and suffered substantial injuries, for which the jury gave.'.her a verdict. It is not clear from the testimony whether she stepped directly from the sidewalk onto the-grease spot or whether-her second step was on the grease spot and for purposes of this case it is immaterial.

The testimony as to the grease spot was vague and contradictory, but since the question on this appeal is whether the defendant is entitled to judgment n.o.v., the testimony must be considered in the light most favorable to the plaintiffs and any conflict in the testimony must be resolved in their favor. Miller v. Pennsylvania R. R., 368 Pa. 507, 84 A. 2d 200; McDonald v. Ferrebee, 366 Pa. 543, 79 A. 2d 232. The grease spot was approximately one foot square and was covered with dust or dirt so that the plaintiff did not notice any danger. The driveway was dusty or dirty; the day was clear; there was no evidence whether it was calm or windy. There was likewise no evidence how thick the grease spot was and in particular there was no evidence hoto long it had been on the driveway. When Mrs. Lanni slipped, her heel left a mark through the entire length of the grease spot, but there were no other marks thereon which might have been made by other pedestrians.

Both the trial Court and the Superior Court were of the opinion that the jury could infer from the presence of dust or dirt which covered the grease spot that it must have existed a sufficient length of time to enable the defendant, in the exercise of reasonable care, to discover and correct the condition. This is the narrow question in the case.

The law which is applicable is well settled and has been recently thus stated in Thompson v. Gorman, 366 Pa. 242, 246, 77 A. 2d 413, “The mere happening of an accident is no evidence of negligence. . . . Plaintiff has the two-fold burden of proving that the defendant was negligent and that his negligence was the proximate cause of the accident: Houston v. Republican Athletic Association, 343 Pa. 218, 220, 22 A. 2d 715; Reddington v. Philadelphia, 253 Pa. 390, 392, 98 A. 601; Erbe v. Philadelphia R. T. Co., 256 Pa. 567, 570, 100 A. 966; Martin v. Marateck, 345 Pa. 103, 106, 27 A. 2d 42; Stanffer v. Rwy. Exp. Agency, 355 Pa. 24, 25, 47 A. 2d 817.”

Negligence is the absence or want of care which a reasonable man would exercise under the circumstances. Maternia v. P. R. R., 358 Pa. 149, 56 A. 2d 233. We said in Miller v. Hickey, 368 Pa. 317, 325, 81 A. 2d 910: “. . . negligence need not be proved by direct evidence, but may be inferred from attendant circumstances if the facts and circumstances are sufficient to reasonably and legitimately impute negligence: Rockey v. Ernest, 367 Pa. 538, 80 A. 2d 783; Bills v. Zitterbart, 363 Pa. 207, 69 A. 2d 78; Turek v. Pennsylvania R. R. Co., 361 Pa. 512, 64 A. 2d 779; Randolph v. Campbell, 360 Pa. 453, 62 A. 2d 60; Wright v. Straessley, 321 Pa. 1, 182 A. 682.”

A jury is not permitted, however, to speculate or guess; conjecture, guess or suspicion do not amount to proof: DeReeder v. Travelers Insurance Co., 329 Pa. 328, 198 A. 45; Sharble v. Kuehnle-Wilson, Inc., 359 Pa. 494, 59 A. 2d 58.

The defendant in this case was not an insurer; it owed to the plaintiff only the duty of reasonable care in the circumstances, viz., to correct any unsafe condition which was discoverable by the exercise of reasonable care and diligence. Plaintiff had the burden of proving a defect or unsafe condition and that defendant had actual or constructive notice thereof. There was no evidence of actual notice. Was the evidence as to the time the dangerous condition existed sufficient to enable the jury to reasonably and legitimately infer constructive notice? The Superior Court in Bremer v. Smith, Inc., 126 Pa. Superior Ct. 408 411, 191 A. 395, has ably .expressed the law with respect to constructive notice: “What will amount to constructive notice of a defective or dangerous condition existing upon a defendant’s premises, necessarily varies under the circumstances of each case. Some of the factors affecting the question, in addition to the time elapsing between the origin of the defect and the accident, are the size and physical condition of the premises, the nature of the business conducted thereon, the number of persons using the premises and the frequency of such use, the nature of the defect and its location on the premises, its probable cause and the opportunity which defendant, as a reasonably prudent person, had to remedy it: Langley v. F. W. Woolworth Co., 47 R. I. 165, 131 A. 194

“The Restatement of the Law of Torts, under the title ‘Special Liability of Possessors of Land to Business Visitors’ sets up under Section 343 the following standard of care: ‘A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them....’” See also Gallagher v. Children’s Aid Society, 344 Pa. 152, 23 A. 2d 452.

It is matter of common knowledge that motor vehicles leak or drop oil or grease both in travel and while parked. There was no evidence, facts or circumstances which were sufficient to enable a jury to reasonably and legitimately impute negligence, i.e. constructive notice of the unsafe condition. While the spot was soft and covered with dust or dirt, there were no other footprints on it except those of the plaintiff, which indicates it was of recent origin; nor is there the slightest evidence from which it could be reasonably and legitimately inferred in what period of time the dust or dirt could accumulate with or without wind in that particular locality. It is clear therefore that it could not be determined from any or all of the circumstances and at best it would only be a guess whether the grease spot was on the driveway 10 minutes, 10 hours or 10 days prior to plaintiffs accident.

Plaintiffs rely on Mack v. Pittsburgh Rwy. Co., 247 Pa. 598, 93 A. 618. That case is distinguishable (1) because the jury could have found from the evidence that the grease had been placed on the platform by defendant itself and (2) because it must have remained there for a considerable length of time as it was not only covered with dust, but had footmarks on it showing it had been tramped over by other passengers.

The judgment is reversed and is here entered for the defendant non obstante veredicto.