248 F2d 946 Munzenmayer v. Lit Brothers

248 F.2d 946

Eric MUNZENMAYER and Kathryn Munzenmayer, His Wife,
LIT BROTHERS, Inc., City Stores Company, Lit Brothers
Division of City Stores Company, Appellants.

No. 12210.

United States Court of Appeals Third Circuit.

Argued Oct. 10, 1957.
Decided Oct. 29, 1957.

E. Walter Helm, 3d, Philadelphia, Pa. (Raymond A. White, Jr., Philadelphia, Pa., on the brief), for appellants.

W. R. Lorry, Philadelphia, Pa. (Abraham E. Freedman, Freedman, Landy & Lorry, Philadelphia, Pa., on the brief); for appellees.

Before BIGGS, Chief Judge, and MARIS and McLAUGHLIN, Circuit Judges.


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The plaintiff-appellee, Kathryn Munzenmayer, was injured when she fell from a step in the outer vestibule of the defendant's store in Philadelphia, sustaining injuries. The plaintiff-appellee, Eric Munzenmayer, incurred medical expenses by reason of her injuries and suffered loss of consortium and his wife's services. The case was tried by a jury which rendered verdicts in favor of the plaintiffs. A motion for judgment n.o.v. was made by the defendant-appellant. This was denied and the appeal followed.


Two points are raised by the defendant. It asserts that it was not negligent and that the plaintiff, Kathryn Munzenmayer, was guilty of contributory negligence. Jurisdiction is based on diversity and the law of Pennsylvania governs. There was evidence that the outer vestibule of the defendant's store was not adequately lighted and that this hazard was increased by a litter of paper on the floor. Such conditions, if they were found to exist by the jury, would constitute a basis for a finding of actionable negligence against the defendant. Gripp v. Lit Brothers, 1956, 181 Pa.Super. 444, 124 A.2d 378; Smith v. Penn Fruit Co., D.C.1955, 134 F.Supp. 895, 897. The evidence showing Kathryn Munzenmayer guilty of contributory negligence was slight indeed. Under the circumstances this issue also was for the jury. Dively v. Penn-Pittsburgh Corp., 1938, 332 Pa. 65, 69-70, 2 A.2d 831, 833.


We find no error in the proceedings below. The jugment will be affirmed.