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. * * *'
"In the case at bar there is not the slightest evidence of the length of time during which the alleged defect was permitted to exist, or of its probable cause."
And again at page 413 of 126 Pa.Super., 191 A. at page 398:
"When the nature of appellant's business is taken into consideration, it would seem that the measure of his duty should not be as high as that of the operator of a store or theater; at least it can rise no higher.
"Time is always an important factor in the problem of constructive notice, and we think the general principles announced in store cases are applicable here. Upon consideration of the record, our conclusion is that this case falls within the line of cases in which the evidence has been held insufficient to justify the submission of the question of constructive notice to the jury."
The obligation of the defendant as owner of this pier was certainly no greater than that of the owner of the parking lot in the Bremer case, and under the principles set forth therein it must be held that plaintiff has failed to produce any evidence under which a finding of negligence on the part of the defendant can be made.
There is no merit to plaintiff's contention that this case presents a situation in which the thing which causes the injury is under the exclusive management of the defendant, and the accident is such as does not occur in the ordinary course of things unless the defendant did not use due care, and in which the defendant therefore has the burden of going forward with the evidence to show that it did exercise proper care. The mere presence of a loose piece of iron pipe on a gravel way on a pier owned by the defendant does not, either under the authorities cited or on principle, present such a situation.
The authorities relied upon by plaintiff in support of its position are distinguishable. In Vetter v. Great A. & P. Tea Co., 322 Pa. 449, 185 A. 613, a judgment was upheld in favor of a plaintiff who slipped on refuse vegetables on the cellar steps of a dark stairway in a store owned by defendant, but in that case the steps were in the exclusive control of the defendant, had been used only by its employees, and there was evidence that defendant's employees had notice of the dangerous condition of the steps and that defendant failed to correct that condition before permitting plaintiff to use the stairway. In Sears, Roebuck & Co. v. Peterson, 76 F.2d 243, it was alleged that defendant's employees had negligently created a danger by throwing on the floor of defendant's store the piece of twine on which the plaintiff fell, and the evidence of negligence was testimony which tended to show that the twine was the same as had been removed by defendant's employees from evergreen trees very near to where plaintiff tripped and fell on it. It is true in American Stores Co. v. Murray, 3 Cir., 87 F.2d 894, the Circuit Court of Appeals of this circuit held that no notice was required of a defective tread on a step in defendant's store. But the defect in that case was a structural one, the tread was improperly attached and loose, and the defendant should have known of that condition. The store owed the customer the affirmative duty of keeping the store approach reasonably safe and of itself giving warning of its unsafe condition. In that case there was no claim, as in the instant case, of the presence of an extraneous object, which under the Pennsylvania decisions required notice, actual or constructive, to the defendant. It might be noted too that American Stores Co v. Murray, supra, was decided prior to the adjudication in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487, which requires adherence to the applicable Pennsylvania law in this case, and in so far as the Murray decision may be in conflict with the Pennsylvania Supreme Court decisions, it cannot be regarded as controlling authority in this case. Furthermore, we think the later decision of the Circuit Court of Appeals in O'Brien v. Calmar S.S. Corporation, 3 Cir., 104 F.2d 148, 149, enunciates the law controlling on me in this case. The plaintiff O'Brien in that case and the present plaintiff Flynn are the same person, and the suit was to recover for the same injury sued for in this case. He had joined the ship's crew under the assumed name of O'Brien and sued the owner of the vessel. Judge Dickinson entered judgment for the defendant. On appeal, Judge Biddle, speaking for the appellate court, said: "Plaintiff slipped on a piece or iron pipe which was lying in the gravel on the pier. There was no evidence of how long the pipe had been there, nor that the boatswain, who was directing plaintiff's movement from the vessel, saw it. Judge Dickinson was right in holding that plaintiff had failed to establish any negligence. Bailey v. Texas Co., 2 Cir., 47 F.2d 153, where recovery was allowed, is distinguishable because the defendant there failed to keep the passageway to and from the ship reasonably safe for the plaintiff, an invitee."
I make the following
Conclusions of Law
1. Plaintiff has failed as a matter of law to show any negligence on the part of the defendant.
2. Judgment is hereby entered for the defendant.
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