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FRISCH v. TEXAS COMPANY ET AL. (01/05/50)

January 5, 1950

FRISCH, APPELLANT,
v.
TEXAS COMPANY ET AL.



Appeal, No. 152, Jan. T., 1949, from judgment of Court of Common Pleas No. 1 of Philadelphia County, March T., 1947, No. 4831, in case of John J. Frisch v. The Texas Company et al. Judgment affirmed.

COUNSEL

Leonard Turner, for appellant.

Richard A. Smith, for Texas Company, appellee.

Glenn A. Troutman, with him McWilliams, Wagoner & Troutman, for Samuel C. Ciaverelli, appellee.

George H. Detweiler, with him Robert A. Detweiler and A. Walling Levin, for Ruth G. Kahn et al., additional defendants, appellees.

Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.

Author: Drew

[ 363 Pa. Page 620]

OPINION BY MR. JUSTICE DREW

This suit in trespass was brought by plaintiff, John J. Frisch, to recover damages for personal injuries sustained by him when he slipped, for some unexplained reason, on the public sidewalk and fell into a nearby grease pit located on property owned by Ruth G. and Julia Kahn. These owners had leased the real estate, upon which was constructed a gasoline service station, with the usual equipment, including a grease pit, to The Texas Company. That company in turn sublet the property to Samuel C. Ciaverelli, who was operating the station at the time the accident occurred. Suit was instituted against defendants, The Texas Company and Ciaverelli, and the Kahns were brought in as additional defendants. At the conclusion of plaintiff's case, the learned trial judge directed a verdict in favor of defendants and additional defendants. A motion for a new trial having been refused by the court en banc and

[ 363 Pa. Page 621]

    judgment having been entered on the verdict, plaintiff took this appeal.

Viewing the testimony in the light most favorable to plaintiff, the following facts appear. The gasoline service station was located on the northeast corner of Hutchinson Street and Rising Sun Avenue in the City of Philadelphia. The grease pit with which we are here concerned, was located entirely within the limits of the service station property, three or more feet from the 15-foot sidewalk of Rising Sun Avenue, it was similar to those generally used at gas stations in order that automobiles can be driven over them and greased from beneath. At about 9:30 o'clock on the evening of December 14, 1946, plaintiff, 51 years of age, was walking on the sidewalk of Rising Sun Avenue close to the line of the abutting service station property. When he reached a point on the sidewalk opposite the grease pit, he slipped or lost his balance (the reason for which plaintiff could not explain), and fell into the grease pit and sustained personal injuries.

Plaintiff argues that in directing a verdict for defendants the court below erred because defendants were negligent in failing to install a covering or other protection over the pit. Defendants contend, and the court below concluded as a matter of law, that the proximate cause of plaintiff's injury was not any breach of duty on the part of ...


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