Appeal, No. 299, Jan. T., 1952, from order of Court of Common Pleas of Crawford County, Feb. T., 1949, No. 4, in case of Martin J. Kunz v. The City of Titusville. Order reversed.
Stuart A. Culbertson, with him Rowland B. Mahany, for appellant.
F. Joseph Thomas, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
This appeal involves once again the question whether a given activity of a municipality partakes of the nature of a governmental or a proprietary function; if the former, the municipality is immune from tort liability; if the latter, it is legally responsible for injury caused by the negligence of its employes.
Plaintiff conducted a business of collecting garbage and rubbish from business places in the City of Titusville and hauling it to an incinerator plant owned and operated by the city. On the occasion in question he took such a load to the incinerator in his truck, which he backed up to the charging hole just inside the incinerator building; he then left the cab, stepped onto the bed of the truck, and let down the tailgate so that it extended out even with the floor of the truck. Standing with one foot on the tailgate and one foot on the bed of the truck, he began shoving the refuse material into the hole. While thus stationed he felt a jarring of the truck, lost his balance, and fell into the hole upon the hot ashes. His helper, together with one Frank Nelson, a city employe, tried to pull him out. While they were so engaged another employe of the city who was in the basement started to raise the furnace door in an
endeavor to reach him at that lower level, but meanwhile the two men working at the top had managed to extricate him. He was badly burned. He started to "bawl out" both his helper and Nelson because he thought they had not rescued him as quickly as they should have done; he alleges that thereupon Nelson said "he was sorry he shook the truck and knocked me off, he didn't intend to," and that his reason for doing it was to "stop throwing the stuff in there." During the time plaintiff was on the truck shoveling the garbage into the hole Nelson was standing near the cab of the truck with a broom in his hand apparently engaged in sweeping some of the debris from the pavement into the hole. No one actually saw him strike or shake the truck.
Plaintiff brought suit against the City of Titusville to recover for his injuries. He obtained a verdict from the jury but filed a motion for a new trial on the ground that the verdict was inadequate. The city, on the other hand, filed a motion for judgment n.o.v. The court overruled the city's motion but granted that of plaintiff, whereupon the city took the present appeal.
Plaintiff argues that, since the court granted him a new trial, its overruling of defendant's motion for judgment n.o.v. cannot be considered on this appeal. There is no merit in this contention. It is true that if the reason for the granting of the new trial had been to correct trial errors or to allow plaintiff to produce additional testimony in order, in either event, to enable him, if possible, to establish defendant's liability, its refusal to grant defendant's motion for judgment n.o.v. might not be reviewable. But since, in the present instance, the new ...