Appeal, No. 11, May T., 1956, from judgment of Court of Common Pleas of York County, April T., 1954, No. 96, in case of Elwood Kopp v. R. S. Noonan, Inc. Judgment affirmed. Trespass for personal injuries. Before SHERWOOD, P.J. Compulsory non-suit entered; plaintiff's motion to take off non-suit denied and judgment entered for defendant. Plaintiff appealed.
William H. Kain, with him Kain, Kain & Kain, for appellant.
Frank B. Boyle, with him Arthur Markowitz, and Markowitz, Liverant, Boyle, Rauhauser & Kagen, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
In this action of trespass for personal injuries plaintiff appeals from the refusal of the court below to take off a compulsory non-suit on which judgment was entered.
Plaintiff, 48 years of age, was injured on his employer's premises under the following circumstances: For some time prior to the date of the accident defendant had been engaged in construction of a new building on land of plaintiff's employer. The new building was connected with the old one by two open doorways. There was an opening in the floor of the new building in which was to be placed an elevator shaft. The floor consisted of concrete strips over which defendant had placed curing paper. This paper extended over the edge of the hole approximately 18 inches, and was of such texture that it did not sag.
During course of construction plaintiff and other employes of the plant would enter the new building almost daily to observe construction, to eat lunch, or to rest. All of this was with defendant's knowledge, and without orders to desist. Neither they, nor this plaintiff, was there on defendant's or the employer's business.
On the day in question, at about 12:00 noon, plaintiff went into the building to rest and to observe construction. An employe of defendant, working in the basement under the shaft opening, called out to ask what time it was, and plaintiff walked towards the opening to advise him. He walked upon the portion of the paper extending over the edge of the opening, which gave way and caused him to fall some 14 feet to the floor below, resulting in his injuries.
There were neither warning signs nor barricades at the opening.
Plaintiff admitted that he had observed the progress of the work by going there "once or twice, two or three times a week"; that he knew of the opening, its purpose, and its depth; that he had observed the laying of concrete and the covering of paper; that as he approached the opening on this occasion he observed that the paper ...