Appeal, No. 184, March T., 1952, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 1921, in case of Corinne M. Tua v. Brentwood Motor Coach Company and Pittsburgh Newspaper Publishers Association. Judgment reversed.
Arthur M. Grossman, with him Leonard Mendelson, for appellant.
Sanford M. Chilcote, with him Dickie, McCamey, Chilcote, Reif & Robinson, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeal is from the refusal of additional defendant's motion for judgment n.o.v. The action in trespass was instituted by Corinne M. Tua, plaintiff, who was injured while standing on a busy street corner in the City of Pittsburgh when a heavy, metal news stand on the sidewalk was thrown against her when struck
by a passing bus. She sued the Brentwood Motor Coach Company, the transportation company which owned and operated the bus, and this original defendant joined the Pittsburgh Newspaper Publisher's Association, the owner of the news stand, as an additional defendant. The jury returned a verdict for $15,000.00 against both defendants. When the additional defendant's motion for judgment non obstante veredicto was refused, it paid the plaintiff's verdict in full and took an assignment of her rights against the bus company and perfected this appeal.
The original defendant (appellee) contends that appellant was negligent, alleging that appellant permitted its news stand to protrude over the curb into the cartway where it was struck by appellee's bus in passing. Evidence in the record that the news stand did so protrude is extremely meager. The driver and the only passenger on the bus both testified that the bus was proceeding along Diamond Street in the traffic lane nearest the curb, that it came to the corner of Diamond and Grant Streets and paused for passengers with its wheels absolutely parallel to the curbline, that the bus thereafter proceeded forward without the driver turning the wheels at all. It is thus possible to infer that the news stand must have protruded beyond the curb; otherwise the bus could not have struck it since no part of the overhang of the bus extended over the sidewalk. Tenuous though this inference is (especially where the street vehicle traffic is very heavy and in the face of direct testimony that the stand did not protrude past the curb), it was nevertheless sufficient to establish this disputed fact. The settled rule is that on appeal from refusal of judgment n.o.v. the plaintiff must be given the benefit of every fact and inference of fact pertaining to issues involved which may reasonably be deduced from evidence: Kish v. Pennsylvania
of nature." Appellee in its paper book relies on Restatement, Torts, section 392, which reads: "One who supplies to another, directly or through a third person, a chattel to be used for the supplier's business purposes is subject to liability to those for whose use the chattel is supplied, or to those whom he should expect to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by persons for whose use the chattel is supplied: (a) if the supplier has failed to exercise reasonable care to make the chattel safe for the use for which it is supplied, or (b) if the supplier's failure to give to those whom he should expect to use the chattel the information required by the rule stated in § 388 is due to his failure to exercise reasonable care to discover its dangerous character or condition." The element essential to imposition of liability under either of these sections is the creation of an unreasonable risk of harm to another. The Restatement defines unreasonableness at section 291 in these words: "Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done." The decisive question then is: does the risk that injury may result from a news stand being deliberately pushed or accidentally jostled over the cartway by a passerby, outweigh the social utility of having such stands upon street corners as a means of disseminating news and information to the public? There are two reasons why this question must be answered in the negative.
In the first place, as above stated, there was no proof that appellant knew that its news stand projected over the ...