Appeal, No. 309, Jan. T., 1955, from judgment of Court of Common Pleas No. 6 of Philadelphia County, Sept. T., 1953, No. 5673, in case of James Robb v. Gylock Corporation. Judgment affirmed.
Harrison G. Kildare, with him Joseph W. Henderson, Thomas F. Mount and Rawle & Henderson, for appellant.
Joseph G. Feldman, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
In this action of trespass defendant appeals from the refusal of its motion for judgment n.o.v., based on plaintiff's contributory negligence, and of its motion for new trial, founded on the claim that its negligence was not established and that the verdict was excessive.
The verdict of the jury established the following facts:
Plaintiff was a truck driver for the Pioneer Salt Company. As such, he delivered to defendant carboys containing sulphuric acid, and also collected them, when empty, for return to his employer. Defendant was one to which such material and service were supplied. Plaintiff had been so engaged for a period of approximately one year prior to the occurrence leading to his injuries. On this day he and his helper had delivered supplies to defendant, at which time he was directed by defendant's employe to pick up and return to his employer some "empty" carboys which were stored outside the building but, because of their hazardous contents, within a fenced enclosure.
The carboys were 20-gallon glass bottles, approximately 3 feet high and 2 feet in diameter, each enceased
in a wooden crate with the spout extending from the top and capped with a ceramic stopper. Having dragged the first one to the truck, whose tail gate was approximately 4 feet from the ground, plaintiff asked defendant's employe, "are you sure these things are empty?", and was told, "Positively they are empty. That is why we want to get rid of them." They were "wet and heavier than what they would usually be," and weighed about 80-85 pounds. When moving the second one, and because of its weight, he again asked if they were empty and was again told, "Yes I am sure. I told you they were all empty." He thereupon lifted it from the ground in the customary manner, but as he placed the bottom on the tail gate, the stopper flew off, and acid sprayed his forehead, nose, neck, right side of his face, and clothing. He suffered severe burns and permanent scars, with attendant pain and embarrassment.
Plaintiff's expenses were $326.57, and his verdict was $5000. However, much of the treatment, through medicinal applications to the injuries as well as attention, was given him by ...