Appeal, No. 259, March T., 1953, from judgment of Court of Common Pleas of Crawford County, Nov. T., 1951, No. 8, in case of Leo Coradi v. Sterling Oil Company. Judgment affirmed. Trespass for personal injuries. Before MOOK, P.J. Verdict for plaintiff in the sum of $4,858.85; judgment n.o.v. entered for defendant. Plaintiff appealed.
Kenneth W. Rice, for appellant.
Stuart A. Culbertson, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
Plaintiff brought an action in trespass for damages sustained by him when a pole against which he had placed his ladder, broke, and he fell to the ground and was injured. Plaintiff appealed from the judgment non obstante veredicto and on such an appeal plaintiff is entitled to all the evidence which is most favorable to him, together with all reasonable inferences therefrom; and if there be any conflicts in the testimony
such conflicts must be resolved in his favor: Lanni v. P.R.R., 371 Pa. 106, 88 A.2d 887; Shaw v. P.R.R., 374 Pa. 8, 10, 96 A.2d 923. Considering the evidence in the light most favorable to the plaintiff, he is entitled to the benefit of the following facts:
On December 19, 1949, plaintiff was employed at a service station which since 1941 had been operated by defendant's lessees, Hart & Eiseman, under a lease with defendant. Lessees wished to decorate the premises and especially a light on top of a 12 foot high steel pole. The pole was erected on a concrete island in the driveway between three gasoline pumps which were also on this tiny island. Steel flanges were welded on the bottom of the pole; the bottom of the pole was then affixed to these metal flanges which in turn were bolted to the concrete island; then a small cap or bell-shaped housing was placed over the bottom of the pole, which covered up the flanges and the bolts. A light to illuminate the gas pumps was placed on top of the pole. This pole had been there for 15 years and plaintiff and his employers daily worked around it and often leaned against it. Prior to the accident, no one had ever seen anything the matter with the pole; after the accident, the pole was found to be badly rested on the inside and this created a dangerous condition. No outside or reasonable inspection would have disclosed this rusted or dangerous condition, but it could have been discovered only by lifting the small cap or bell-shaped housing which covered the bottom of the pole as well as the flanges and the bolts, and then tapping the pole with a hammer.
Lessees, under the terms of this lease, agreed to repair and maintain the premises and to save the lessor harmless "from any liability by reason of any personal injuries to any person on or about the said premises and the lessees further agree that they will assume all
liability and damages which may arise from any damages that may occur either on or in front of said premises." Nevertheless, plaintiff sued the lessor and not the lessees, and proved that defendant from time to time had voluntarily entered upon the premises and repaired damaged pumps and equipment and painted the inside and outside of the station as well as the pole. However, it is important to note that no evidence was produced by plaintiff to show that any repairs were ever made by defendant to the pole; the most defendant did was to have the pole painted several times, including one time three months prior to the accident. Plaintiff proved by a so-called practical expert ...