Before BIGGS, GOODRICH and O'CONNELL, Circuit Judges.
Jurisdiction in the instant case is based on diversity. The law of Pennsylvania governs. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487. See also Kehoe v. Central Park Amusement Co., 3 Cir., 52 F.2d 916, 917. The plaintiffs are husband and wife. The wife sued for damages for personal injuries; the husband, to recover for loss of his wife's services and society. The plaintiffs alleged that the wife-plaintiff was injured because of a defective table top. We think that clarity will be more readily achieved in this opinion if we give a rather complete factual background of the defendant's operations before dealing with the assertions of the parties as to how or why the accident occurred. The jury rendered a verdict for the plaintiffs in the amount of $2,000 and judgment was entered in accordance with the verdict. The court below set aside the verdict and entered judgment n.o.v. for the defendant. The plaintiffs appealed.
The defendant maintains an amusement park. Wooden tables and benches for picnics are furnished by it without charge to its patrons. Plans of tables used by the defendant at its park and a photograph of what was deemed to be a typical table were introduced in evidence. A table, not the one at which Mrs. Brown, the wife-plaintiff, sat, but one similar to the picnic table used by the Browns (a certain atypical feature to be dealt with immediately hereinafter aside), was brought into our court room and into the court below, and was used for demonstrations as to how the accident occurred. The top of the table consists of three planks of either long leaf yellow pine or white pine. It appears from the plans, from the photograph and from the table itself that each of the three planks is 7'11" long and 11 1/2" wide. There is a dispute as to the thickness and weight of the plank which was nearest to Mrs. Brown. This is the atypical feature. The plans, however, show each plank as possessing a thickness of 1 3/8". They are nailed to the tops of two horses at a point 14 3/4" from each end of the plank. The tops of each horse on which the planks forming the table top rest are shown in the plans as 3 1/2" in width. Cross-pieces extend out on each side of the horses and are nailed to them. To the top of each cross-piece is bolted a 1 3/4" plank, 7 3/4" wide, which forms a bench. The top of each bench is 1'10 1/8" from the ground. The defendant's chief carpenter stated that the planks comprising the tops of tables like the one in court were either 1 3/8" or 1 1/4" in thickness. A lumberman, Kohn, an expert in woods, produced by the plaintiff testified that the weight of one of the planks comprising the top of the table brought into court weighed approximately thirty-five pounds. This plank was of long leaf yellow pine. The witness said that if the plank of the table at which Mrs. Brown was seated was of white pine, it would be six to eight pounds lighter. He stated also that "occasionally" rottenness in wood could be determined by merely looking at it, a fact which is known to all; that rottenness in wood always could be detected by probing with a probing instrument. He stated also that the outside plank of the three planks comprising the top of the table in court were made of long leaf yellow pine which would rot under the conditions which existed at the amusement park (to be described hereinafter) within five to eight years; that the tops of the horses were made of West Coast Douglas fir which at the point of contact with other wood would rot "within three years one-eighth inch in". Mr. Brown testified that the plank of the table top which had been instrumental in causing his wife's injury seemed "much lighter" than the plank which the lumberman estimated as weighing thirty-five pounds. He testified also that that plank of the table top, nearest to his wife, had pulled out of the top of the horse farthest away from her despite the fact it had been nailed to the horse, and that the wood at the top of the horse "looked rotten".
Since a picnic table is not inherently a dangerous object the plaintiffs undertook to show, as part of their case in chief, that the defendant's inspection of the tables was so limited as to be legally insufficient. They endeavored to do this by producing employees of the defendant. The following appeared in the course of the testimony on this point.
There were in the park about five hundred picnic tables of the sort brought into court. Some were perhaps fifteen years old. During the winter months the tables were stored in shelters which had roofs but had no sides. In the spring the tables were distributed about the park. The defendant employed two carpenters to take care of its equipment. The head carpenter inspected the tables nearly every week. When he was not available the other carpenter made inspections. The inspections consisted of walking around the tables and looking them over. If a carpenter saw one that did not "look right" he examined it further. A carpenter, employing a hammer for that purpose, tapped or sounded any board which seemed to have weakened. On occasion he put a knee on the seats and pressed to see if the wood was sound. He sometimes followed this procedure with the planks of the table tops. Laborers were employed to clean off the tables and these men were required to report to the defendant's office anything which appeared to them to be out of condition about the tables. If a table had rotted it was supposed to be scrapped or rebuilt. The inspecting carpenter did not tap every piece of wood in all the tables; nor did he take hold of the planks which form the table tops and attempt to pull them up. When the tables were taken out of the shelter to be placed about the park, the laborers who carried them picked them up by the ends of the top boards, a procedure which, it was testified, would disclose loose boards in most instances.
According to her story Mrs. Brown was seated at one of the tables close to the horse nearest to her and to the right of it. Her sister was seated immediately to her right. A picnic lunch had come to an end. Mrs. Brown, who weighed one hundred seventy-five to one hundred eighty pounds, stated that she started to get up from the table, turned and swung her feet to the left so as not to touch her sister; that she then put her right hand on the table and pressed down as an aid in lifting her body up. The plank on which she pressed was nailed, as has been indicated, to both horses. She stated that it went down under her weight at the end nearest to her, the other end rising in the air, the top of the nearest horse serving as a fulcrum. Mrs. Brown illustrated in court to some degree what she said had occurred and in her demonstration she put her right hand at a point approximately 10" from the end of the plank on the table in court. She also indicated that her left thigh was about 8" from the horse.Her sister testified that the plank flew up in the air. Mrs. Brown fell and broke her right leg. The husband-plaintiff did not see the accident. Both plaintiffs testified that the picnic table "looked perfectly all right" when the Brown party sat down at it.
The defendant has raised three points, two of which require discussion. In view of our decision it will be unnecessary to discuss the third defense raised by the defendant. This deals with the verdict of the jury and the judge's charge in relation thereto. We will discuss the defendant's second point first.
The defendant contends that the "incontrovertible physical facts rule" of Pennsylvania as exemplified by such decisions as Lamp v. Pennsylvania R. Co., 305 Pa. 520, 525, 158 A. 269, 271, 84 A.L.R. 1217, and the authorities therein cited, requires a decision in its favor. It must be borne in mind that under the incontrovertible physical facts rule and also because the jury rendered a verdict in favor of the plaintiffs every inference of which the evidence is fairly susceptible must be taken in favor of the plaintiffs. So viewing the evidence and applying the familiar formula for lever on fulcrum it will be found that Mrs. Brown could not have moved the plank if it weighed 35 pounds unless she had weighed approximately 241 pounds. But putting her full weight on it, as conceivably she could have done, she could have moved the plank out of position if it had weighed 26 pounds or less. We have set out in the footnote the calculations whereby these conclusions are arrived at.*fn* Taking the inferences from the evidence most favorable to the plaintiffs, it is easily possible to arrive at a determination that the loose plank weighed 26 pounds or less. It follows, therefore, that the incontrovertible physical facts rule of Pennsylvania cannot be applied to obviate the defendant's liability for though it is most probable that the accident did not happen as Mrs. Brown asserts, nonetheless there is the possibility that it did occur in the manner described by her. As we apprehend the Pennsylvania incontrovertible physical facts rule the court below, in order to apply it, would have had to have been in a position to state that the accident could not possibly have occurred in the manner testified to by the wife-plaintiff.
As to the first defense raised by the defendant we are of the opinion that the plaintiffs have not met the test required by the law of Pennsylvania by showing that the defendant could have discovered the loose state of the offending plank by the exercise of the degree of care required of it under the circumstances. The possessor of land is liable to invitees "* * * if, but only if, he 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 * * *". Restatement, Torts, § 343; Vetter v. Great A. & P. Tea Co., 322 Pa. 449, 185 A. 613. In Hunter v. Hotel Sylvania Co., 153 Pa.Super. 591, 34 A.2d 816, a guest was injured when he cut his hand on a cracked porcelain shower bath handle. Recovery was denied on the ground that the injury was due to a latent and unsuspected cause. There is an analogy in the facts of the Hunter case to those of the suit at bar. See also Bechtel v. Franklin Trust Co., 120 Pa.Super. 587, 182 A. 800, in which injury occurred from plaster falling from the ceiling in a bank vault; Kline v. Kratchman, 87 Pa.Super. 463, injury caused by a splinter in bathing equipment; and Smith v. Hartman, 79 Pa.Super. 126, injury from collapse of shelves in a store. Cf. the circumstances set out by Mr. Justice Jones in Oberheim et vir v. Pennsylvania Sports and Enterprises, Inc., 358 Pa. 62, 55 A.2d 766.
The court below stated in its opinion: "If the many statements of the Pennsylvania Courts, to the effect that care required is commensurate with the risk, mean anything, they must mean that the owner's duty as to such equipment can be met by a less elaborate and thorough-going system of inspection than in the case of appliances which, if defective, involve substantial risk of injury, or which are in themselves dangerous." It is difficult to conceive of any article in an amusement park less likely to cause injury than a loose board in the top of a picnic table such as that in the case at bar. We conclude that under the evidence offered by the plaintiffs themselves the defendant has met the test of reasonable inspection under the circumstances. We agree with the court below that the defendant should not be held liable.
The judgment will be affirmed.
O'CONNELL, Circuit Judge (dissenting).
I agree with the majority of this court that the Pennsylvania incontrovertible facts rule does not bar recovery in the case sub judice. Likewise, I agree that in Pennsylvania a park owner is not an insurer of the safety of his invitees. I believe, however, that the facts as found by the jury at the trial of the instant case neither require nor warrant the conclusion that, as a matter of law, the defendant herein met the test of reasonable inspection under the circumstances. ...