John C. Stenella and Shirley Stenella, His Wife v. S. S. Kresge Company

248 F.2d 933

John C. STENELLA and Shirley Stenella, his wife, Appellants,
v.
S. S. KRESGE COMPANY.

No. 12227.

United States Court of Appeals Third Circuit.

Argued October 25, 1957.

Decided November 7, 1957.

Paul M. Goldstein, Philadelphia, Pa., (Herman Moskowitz, Philadelphia, Pa., Stark & Goldstein, Philadelphia, Pa., on the brief), for appellant.

Henry T. Reath, Philadelphia, Pa., (Duane, Morris & Heckscher, Philadelphia, Pa., on the brief), for appellee.

Before GOODRICH, KALODNER and STALEY, Circuit Judges.

PER CURIAM.

1

This is a suit for injuries alleged to have been sustained by the wife-plaintiff, Mrs. Shirley Stenella, when she claimed to have fallen and hurt herself by reason of a foreign substance on the floor of one of defendant's stores in Philadelphia. The jury returned a verdict for the defendant and the plaintiff appeals alleging error in the trial of the case. We do not find any error. Complaint is made that the judge should not have charged the jury concerning contributory negligence. But contributory negligence was alleged in defendant's answer. There was testimony in the plaintiff's case as to the manner in which the injury took place. It was sufficient to raise a question whether the plaintiff was contributorily negligent. We find no error in submitting the question to the jury. Cf. Dunn v. Calpin, Pa.C.P. 1941, 51 Dauph.Co. 192, 194.

2

The other alleged errors have been considered but do not need to be set forth. The case was fairly tried and the jury's verdict and the judgment thereon must stand.

3

The judgment of the district court will be affirmed.