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MENZEL v. LAMPROPLOS (01/12/51)

January 12, 1951

MENZEL
v.
LAMPROPLOS



COUNSEL

Milton W. Lamproplos, Pittsburgh, George W. Lamproplos and Cassidy & Lamproplos, all of Greensburg, for appellant.

Francis S. McQuilkin, Pittsburgh, Carroll Caruthers, Greensburg, for appellee.

Before Hirt, Acting P. J., and Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Gunther

[ 168 Pa. Super. Page 330]

GUNTHER, Judge.

Lawrence M. Menzel instituted this action in trespass for damage to his automobile resulting when a massive accumulation of ice fell from the second floor rainspouting of the premises of William Lamproplos, appellant. A jury returned a verdict for appellee in the sum of $200.00. After dismissal of appellant's motion for judgment n. o. v., he has appealed complaining that there was insufficient evidence (1) to charge him with negligence; and (2) to support a finding that the accumulation of ice existed for a sufficient length of time to charge appellant with notice of the existence of a dangerous condition.

[ 168 Pa. Super. Page 331]

Where, as here, appellee has a jury verdict in his favor, he is entitled on appeal to have the court consider only the evidence which supports his verdict and to give to him the benefit of every inference of fact reasonably deducible from the evidence and reject all other evidence. Valentine v. Philadelphia Transportation Company, 167 Pa. Super. 592, 594, 76 A.2d 471. So considered, the evidence establishes that about noontime on March 13, 1947, appellant was the owner of a business property, the rear of which abutted on the southerly side of a public alley in the Borough of Latrobe. The building in the rear was three stories high, and as appellee was driving his sedan car in an easterly direction through the alley he observed a massive accumulation of ice at the eastern end of appellant's building extending along the rainspouting from the roof of the building for a distance of twelve to fifteen feet. A truck was parked on the opposite side of the alley which compelled appellee to drive his car 'pretty close' to appellant's building, and as he did so this massive accumulation of ice broke loose and struck the steel top of his car. As a result, the steel turret top was caved in to the depth of ten to twelve inches extending from the windshield to the rear glass; the roof of the car as caved in touched appellee's hat. Appellee was unable to testify directly how big the ice accumulation was or what it weighed, other than to say it extended about twelve to fifteen feet from the roof of the building; that examination of the ice subsequently indicated that it was scattered all over the alley. The weather reports from February 20 to March 13, 1947, were admitted into evidence. These records indicate that from February 20 to March 3, 1947, there had been a number of fairly heavy snowfalls with the temperature ranging from 12 to 35 degrees; that from March 4 to March 11, 1947, there were

[ 168 Pa. Super. Page 332]

    thawing temperatures for about six hours each day and no appreciable snowfall; there were thawing temperatures from 9 a. m. on March 12 to the following midnight; on the morning of March 13, 1947, the day of the accident, there were freezing or near freezing temperatures from 2 a. m. to 7 a. m. and from about 8 a. m. to the time of the accident there was a period of thawing temperature.

Appellant's complaint is that on the basis of the above recited evidence and in the absence of any direct testimony relating to the weight of the ice, it was error to permit the jury to infer from the circumstances that the accumulation of ice was of sufficient size to constitute a real and obvious danger; that the evidence was insufficient to warrant a finding by a jury that the accumulation existed for a sufficient length of time to charge appellant with constructive notice of its presence.

Whether the accumulation of ice constituted a real and obvious danger to users of the thoroughfare was properly a question for the jury. It is true that a possessor of land is not under an absolute duty to keep his building free from ice and snow at all times. Hutchison v. Montgomery Ward & Co., 364 Pa. 126, 130, 70 A.2d 838. To show a breach of duty by a possessor of land to a person outside the land who is injured by an artificial condition thereon, it must not only appear that the condition existed for so long a time as to visit the possessor with knowledge of it, but also that the danger was sufficiently obvious that he should have realized that someone might be injured because of it. Cf. Restatement, Torts, Section 364. The court below, in dismissing ...


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