The opinion of the court was delivered by: BARD
This is an action to recover damages for injuries sustained by plaintiff allegedly as a result of the negligence of the defendant. I make the following special
1. On March 15, 1938, plaintiff was employed by the Calmar Steamship Corporation as a member of the crew of the Steamship "Massmar", which was moored at a pier owned by the defendant at Philadelphia, Pennsylvania.
2. Along the edge of the pier there was a three-foot wide concrete platform, adjacent to which there was a six-foot wide gravel way, along which ran the railroad tracks of the defendant.
3. While plaintiff was engaged in moving a gangway of the ship, he stepped on a piece of iron pipe which was lying in the gravel way and which caused him to fall and sustain serious injury.
4. Prior to and at the time of the accident defendant had an oral understanding with the Calmar Steamship Corporation permitting Calmar to dock its vessels at the pier, but not requiring Calmar to maintain or police the pier.
With respect to the control of the pier, defendant admitted ownership, but alleged that it had orally assigned the pier to the Calmar Steamship Corporation for the dockage of its vessels and the loading and discharge of cargoes therefrom. The only evidence, however, indicates that the arrangement between the companies was in the nature of an oral license to Calmar to use the pier for such purposes, and Calmar was under no duty to police, maintain or repair the pier.
On this state of the record there is no evidence which permits a finding that the defendant was guilty of negligence. It may be granted that plaintiff, as an employee of a company permitted to use the pier for purposes which furthered the business of the defendant, may be categorized as an "invitee", as distinguished from a trespasser or a gratuitous licensee, Bailey v. Texas Co., 2 Cir., 47 F.2d 153, and that defendant was therefore under a duty to exercise reasonable care to discover a condition on its land involving unreasonable risk to him. Restatement of Torts, § 343. The difficulty is that there is nothing to show that the defendant violated its duty in this respect. The sole evidence upon which plaintiff relies is the presence of the pipe on property owned by the defendant at the time of the accident. There is nothing to indicate that it came there as a result of the negligence of any employees of the defendant, nor that it had been there for any period of time sufficiently long that an inspection by defendant's employees in the exercise of reasonable care would have disclosed it.
Under the law of Pennsylvania, which is controlling, no negligence has been established. The governing principles are set forth in Bremer v. W.W. Smith, Inc., 126 Pa.Super. 408, 191 A. 395, in which the plaintiff was injured when she stepped into a four inch hole in defendant's parking lot. There was testimony that the hole looked as though many cars had passed over it and that its outer edges had been "sort of smoothed down by the tracks of other machines going over it." In holding that the plaintiff had failed to establish a breach of duty by the defendant, the court said at pages 411 and 412, of 126 Pa. Super., 191 A. at page 397:
"Appellee came upon the premises controlled by appellant at its invitation. Appellant was not an insurer of the safety of its invitee, but it was its duty to maintain its premises in a reasonably safe condition in view of the contemplated use thereof and the purposes for which the invitation had been extended. As applied to this case, the measure of its duty was to keep the surface of its lot in such condition that its patrons would not be exposed to danger in entering or leaving the parking space, or in alighting from their cars. There was no suggestion that appellant had any actual knowledge of the existence of the hole or depression which caused appellee's fall. So far as the description of the defect given by appellee and her witness is concerned, it may have been caused by the spinning of the rear wheels of an automobile. But regardless of its cause, appellee had the burden of showing circumstances from which appellant could reasonably be charged with constructive notice of its presence.
"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 ...