(dissenting) .
As this appeal now stands, concededly Pennsylvania law governs its substantive negligence problem. Also concededly Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959) correctly sets out what is the Pennsylvania law for said governing problem.
Plaintiff slipped and fell in one of defendant’s stores. She instituted a negligence suit in the District Court to recover for injuries sustained. A jury verdict in the amount of $20,000 was rendered in her favor. On November 27, 1967, upon defendant’s motion for judgment notwithstanding the verdict, in an opinion and order of the trial judge, that motion was granted. Plaintiff appeals from the resultant entry of judgment n. o. v. in favor of defendant. The question presented by the n. o. v. motion and the issue now before us is whether there is sufficient evidence of negligence- to sustain the verdict.
The accident occurred on October 5, 1961 when plaintiff accompanied by George Williams entered defendant’s premises in response to a newspaper advertisement for canned hams. Plaintiff testified that she went into defendant’s store and proceeded in the direction of the canned ham display which was located near the street entrance. As plaintiff approached the display, she slipped and fell. Asked to describe the condition of the floor, she stated: “There were pieces of lettuce leaves, the type you would have in a- — small pieces, like it would be torn up in a — salad. That would be the closest thing I could — you know how they would be torn if you were getting them in a salad bowl.” Describing the condition of the lettuce leaves, plaintiff stated: “They were brown. They were yellow. They were — they were old. They weren’t fresh.”
Mr. Williams was called as plaintiff’s witness. He testified that he went to *92defendant’s store with plaintiff and was about six feet behind her when he saw her fall. He was asked to describe the condition of the floor and stated that there were approximately five pieces of lettuce in the area over which plaintiff passed. He said that the pieces were brown, wilted, old and from an inch to two inches in size. He also testified that he examined the heels of plaintiff’s shoes forty-five minutes after the fall and found a piece of brown lettuce leaf about the size of his fingernail crushed on the heel of her right shoe.
Defendant called the store manager as its witness. He stated that he did not notice any lettuce leaves on the floor at the point where plaintiff fell and further that the vegetable department was located in a part of the store a distance from the place of plaintiff’s accident. He also said that the porter whose job was to keep the store clean had gone off duty only fifteen minutes prior to plaintiff’s accident.
Plaintiff, in order to recover, must prove that defendant was negligent and that its negligence was the proximate cause of the accident. The governing Pennsylvania law requires that plaintiff prove that the foreign substance, which caused the accident, was on the floor for a long enough period of time to charge defendant with constuctive notice of its presence. See Martino v. Great A & P Tea Co., 419 Pa. 229, 213 A.2d 608 (1965). There was no evidence that defendant had actual notice of the presence of any foreign matter on the floor of the store. Plaintiff in an effort to prove constructive notice sought to use the condition of the lettuce as a means of establishing that the lettuce was on the floor long enough for defendant, in the exercise of reasonable care, to discover it. The precise issue then is whether under Pennsylvania law the jury may infer the length of time the lettuce was on the floor, solely from the brown and wilted condition of the lettuce itself. Can the jury in those circumstances infer time from condition ?
In a key Pennsylvania decision, Mack v. Pittsburgh Rys. Co., 247 Pa. 598, at p. 602, 93 A. 618, at p. 619 (1915), a case involving a slip and fall on grease, the court held:
“The length of time that it remained in the car was not shown by direct evidence, but the jury would have been warranted in finding that it had remained there for some time, as it was covered, with dust, had footmarks in it, and had been tramped over by other persons on the car, manifestly before the plaintiff attempted to alight, as no person immediately preceded her to the front door.” (Emphasis supplied).
Lanni v. Pennsylvania RR. Co., 371 Pa. 106, 88 A.2d 807 (1952) is another guide line opinion wherein plaintiff slipped and was injured by a fall on grease. The court found at p. 111, 88 A.2d at p. 889:
“It is a 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 plaintiff’s accident.”
The same principles have been applied consistently by the Pennsylvania appellate court decisions to claims for injuries from alleged slipping on vegetable particles. See, for example, Gorman v. Simon Brahm’s Sons, Inc., 298 Pa. 142, 148 A. *9340 (1929) ; Franz v. Peccalaio, 356 Pa. 494, 52 A.2d 177 (1947) ; cf. Davidson v. Borough of Upland, 184 Pa.Super. 559, 136 A.2d 155 (1957), and eases there cited.
The above opinions make it clear that in circumstances as are before us in the instant issue for the jury to be allowed to infer time from condition there must be additional affirmative evidence that the involved matter had been stepped in or on by others than the plaintiff, affecting the condition thereof. Absent such proof the evidence would merely indicate that the material on the floor was in the process of natural deterioration. In our appeal there is no evidence upon which to conclude that the lettuce was even on the floor when it turned brown.
Granting judgment n. o. v. the district court judge decided that plaintiff’s evidence was insufficient to sustain her verdict because the jury, on the crucial constructive notice issue, of necessity was forced to base its verdict on speculation. The problem of the legal sufficiency of evidence in a diversity suit, where it goes to the maintenance of a substantive right, is, as above noted, governed by local law. See Sleek v. J. C. Penney Company, 324 F.2d 467 (3 Cir. 1963). Sleek was a negligence action in the federal court because of diverse citizenship of the parties. Plaintiff, after a jury trial, was awarded a verdict and judgment was entered in her favor. On appeal defendant maintained that the evidence was not sufficient to support a verdict against it. In discussing the applicable law this court ruled:
“In determining whether sufficient evidence was presented to support the jury’s finding since this is a diversity case, we must look to the law of Pennsylvania.” 324 F.2d 467, 479.
It might be well to note that plainly whether there is enough evidence to support a jury’s verdict in federal courts is not within the range of independent judicial discretion. That same restriction is operative with respect to the federal judicial role in setting aside excessive verdicts. As to the latter it seems settled that the federal appellate function in that area is not to pass upon a question of fact on which reasonable men could differ, but a question of law. See Grunenthal v. Long Island Railroad Company et al., 393 U.S. 156, 89 S.Ct. 331, 21 L.Ed.2d 309 (November 18, 1968).
The landmark Pennsylvania decisional law as to the plaintiff’s burden of proof when relying solely on circumstantial evidence is admittedly Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959). There the Supreme Court of Pennsylvania pronounced two complimentary governing standards for that sort of claim. The first of these is that a plaintiff’s prima facie case must be such that the jury, by drawing logical inferences from the evidence, in the light of their own knowledge and experience, can reasonably reach the conclusion sought by the plaintiff, even though a contrary finding could rationally be based on the same evidence. That standard is applicable solely to allow the plaintiff to proceed beyond the non-suit stage of the trial. It does not govern our final situation. As stated it relates only the degree of evidence which plaintiff must produce in order to present his proofs to the jury, i. e. to avoid a non-suit. Here, in reviewing a judgment n. o. v. in favor of the defendant, we are concerned with the quality of proof plaintiff needs in order to prevail. The second standard outlines the proof essential to justify a plaintiff’s verdict in the type of suit before us. This is stated in Smith, supra, p. 139, 153 A.2d, p. 480, as follows:
“Therefore, when a party who has the burden of proof relies upon circumstantial evidence and inferences reasonably deductible therefrom, such evidence, in order to prevail, must be adequate to establish the conclusion sought and must so preponderate in favor of that conclusion as to outweigh in the mind of the fact-finder any other evidence and reasonable inferences therefrom which are inconsistent therewith.”
The late opinion in Devenney v. North Franklin Township Volunteer Fire De*94partment, 209 Pa.Super. 378, 384, 228 A.2d 61, 64, (1967) reiterates in depth the said complimentary Smith standards, saying:
“The distinction between the twin standards of Smith — the amount of proof required to support submission of a case to a jury and the proof required to substantiate a verdict rendered by it — is fundamental. However, the standards often are used indiscriminately under the express ‘burden of proof’. Under Smith, the initial standard is satisfied and the case properly submitted to the jury ‘where a reasonable conclusion can be arrived at which would place liability on the defendant’. The second standard is not fulfilled until the evidence so preponderates in favor of the conclusion sought as to outweigh in the mind of the fact finder any other evidence.”
Applying the second Smith standard, as must be done in the status of this appeal, it is indisputable that the evidence offered and any inference reasonably in-ferable therefrom does not preponderate in favor of the conclusion that the lettuce was on the floor for such a length of time that defendant should have been aware of its presence. That is the controlling Pennsylvania law. Under it the judgment of the district court was sound and right. It should be affirmed.
VAN DUSEN, J., joins in this dissent.