Appeal, No, 15, March T., 1951, from judgment of court of Common Pleas of Westmoreland County, August T., 1943, No. 306, in case of Potter Title & Trust Co., Admr., Estate of David Jones, Deceased, v. Mary P. Young et al., Exrs., Estate of George Evans, Deceased. Judgment affirmed.
Robert W. Smith, with him Smith, Best & Horn, for appellants.
J. Thomas Hoffman, with him Arnold L. Biron and Paul M. Robinson, for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE HORACE STERN
The question here concerns the extent of the duty owed to a gratuitous licensee by a possessor of land.
The accident involved happened nearly ten years ago. The Commonwealth was then engaged in building a state highway between North Washington and Apollo. The eastern slab of concrete had been laid; the western half of the road was being graded preparatory to the concrete being laid upon it. George M. Evans, since deceased and now represented on the record
by the executors of his estate, was a subcontractor on the work supplying the dry concrete mix. He employed 25 to 30 trucks, which hauled material from a point a number of miles distant and entered the completed half of the road about a quarter of a mile below the concrete mixer, which was then situated some two miles north of North Washington; upon coming to within about 600 feet of the mixer they would turn and back the remaining distance so as to be able to discharge their loads into it. At a point about half way on this backward journey a grader was in operation on the western half of the road leveling the ground on which the concrete was to be applied; this grader occupied the full width of the half of the road and a tool box projected from it about a foot or more over the concreted portion of the highway. The grader had run into some rock and had been stopped by the operator in order to grease the bearings.
David Jones, who has died since the accident and is represented on the record by the administrator of his estate, was a coal miner, and he, together with a companion, one Leskey, walked some 7 or 8 miles to North Washington in order to obtain employment there in a coal mine. Being unsuccessful the two men then walked north from North Washington hoping to get a job on the road construction. As they passed the point where Summerville, the operator of the grader, was working on it, Jones stopped momentarily to talk to him while Leskey kept walking ahead looking for the "boss". The purpose of Jones in stopping to converse with Summerville does not appear, but it may have been to obtain information as to where the "boss" could be found. At that moment one of the trucks, backing down from the turning point 300 feet away, ran into both Jones and Summerville with the result that Jones suffered a compound fracture of both bones in his right leg. In the present suit to recover damages
for his injuries his estate obtained a verdict in its favor, and the court below refused defendants' motions ...