Waychoff, Maxwell & Waychoff, Waynesburg, for appellant.
Montgomery, Thompson & Baily, Waynesburg, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 297]
This action of trespass was brought against Helen Balazick and the Fraternal Order of Eagles, Aerie No. 249, to recover for personal injuries alleged to have been the result of the negligence of the defendants. At the close of the evidence, the defendant Fraternal Order's point for binding instructions was affirmed. The case against the defendant Balazick was submitted to the jury which returned a verdict against her. From the sustaining of her motion for judgment n. o. v. plaintiff has taken the present appeal.
The jury verdict having been in his favor, we shall consider the evidence, as we must in such case, all facts and inferences reasonably deducible therefrom, in the light most favorable to the plaintiff. Guca v. Pittsburgh Rys. Co., Pa., 80 A.2d 779. So viewed, the pertinent facts are as follows:
At the time of the occurrence which gave rise to this action, the Fraternal Order of Eagles of Clarksville occupied as tenants part of a building owned by the defendant Balazick. The leased portion of the premises included the main dining room, kitchen, two rooms adjoining the kitchen and the cellar under the
[ 169 Pa. Super. Page 298]
kitchen. The landlord retained control over the remainder of the building, including that part of the basement not included in the lease. None of the ground surrounding the building was mentioned in the lease.
The premises are situated in Greene County near the Borough of Clarksville. Immediately west of the one side of the club building, and running parallel thereto in a northerly direction, is an old road, and some two hundred feet farther west and parallel to both building and road is the relocated highway. The only entrance to the Eagles' club room is located at the north end of the west face of the building. Leading to this entrance from the old road is a reddog pathway about 15 feet wide. There is a driveway extending from the old road to a basement door located at the south end of the west face of the building. The driveway slopes from street level at the old road to a depth of 6 or 8 feet below the surface of the ground at the point where it meets the door to the basement. At the time of the accident, a concrete retaining wall extended along the sides of this depressed driveway, rising above the surface of the ground 'eighteen inches or two feet'.
On May 18, 1947, at about 12:30 a. m., the plaintiff approached the club building from the south along the old road. He parked his car on the old road; the rear end of the car came to rest a short distance north of the driveway. Plaintiff got out of his car on the right-hand side and walked diagonally across the lot in a northerly direction to the entrance of the club, a distance ...