project and was generally familiar with the nature of such an operation. It is common knowledge that various types of huge and heavy equipment are used in the construction of highways. Plaintiff had worked on the job approximately five months, presumably driving his truck backward and forward at various locations from time to time. A possessor of land is not subject to liability to his licensees for bodily harm caused to them by any dangerous condition thereon whether natural or artificial if they know of the condition and realize the risk involved therein. Restatement of Torts, Section 340; Kopp v. R. S. Noonan, Inc., 385 Pa. 460, 123 A.2d 429.
While the possessor of the premises is not generally liable to a gratuitous licensee, in the absence of wilful or wanton injury, for an accident due merely to existent conditions upon the premises, he is liable for injury occasioned by any affirmative or active negligence on his part in connection with activities conducted on the premises. Potter Title & Trust Co. v. Young, 367 Pa. 239, 244, 80 A.2d 76.
Even accepting the thesis that active negligence existed on the part of the defendant in permitting the paving equipment to remain on the unopened portion of the Turnpike without adequate warning and lights, recognizing, of course, that the jury in answer to the specific interrogatory found to the contrary, the contributory negligence on the part of the plaintiff would bar his recovery.
Defendant's counsel, both in his brief and in oral argument, admits that the record in no way can sustain the jury's finding of wanton and wilful negligence.
Upon meticulous and detailed review of the record, I must conclude that as a matter of law a finding of wanton and wilful negligence on the part of the defendant cannot be sustained.
Plaintiff's contention that the court's submission of interrogatories to the jury was improper since such questions pose questions of law rather than questions of fact is, in my judgment, without merit. The court in its charge most exhaustively explained the factual basis underlying the answer to each interrogatory. It is pertinent to observe that the practice of submitting such interrogatories under Rule 49(a) of the Rules of Civil Procedure, 28 U.S.C. is salutary and to be encouraged, particularly in cases such as this where interrogatories, underlying a general verdict, assure and make explicit decision upon several issues which must be resolved before a proper disposition can be made of the case. Cate v. Good Bros., 3 Cir., 181 F.2d 146.
In view, therefore, of the jury's finding that plaintiff was guilty of contributory negligence and in view of the conclusion admitted by the defendant, and recognized by the court as a matter of law that wanton and wilful negligence is not evidenced in the record, accepting all testimony and the inferences to be drawn therefrom in a light most favorable to the plaintiff, I am compelled as a matter of law to enter judgment notwithstanding the verdict in favor of the defendant.
An appropriate order is entered.
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