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CARTER v. UNITED NOVELTY AND PREMIUM CO. (05/27/57)

May 27, 1957

CARTER, APPELLANT,
v.
UNITED NOVELTY AND PREMIUM CO.



Appeal, No. 239, Jan. T., 1956, from judgment of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1953, No. 6842, in case of Nettie Lane Carter, administratrix of estate of Arthur Lee Lane, deceased, v. United Novelty and Premium Co. et al. Judgment reversed.

COUNSEL

Milford J. Meyer, with him Norman H. Abrahamson, Busser & Bendiner, and Meyer, Lasch, Hankin & Poul, for appellant.

John J. McDevitt, 3rd, for appellees.

Before Stern, C.j., Jones, Bell, Musmanno and Arnold, JJ.

Author: Jones

[ 389 Pa. Page 200]

OPINION BY MR. CHIEF JUSTICE JONES

On the morning of January 17, 1953, Arthur Lee Lane was fatally injured in an elevator accident in a business building at 425 Market Street, Philadelphia. His mother, Nettie Lane Carter, as administratrix of his estate, instituted survival and wrongful death actions for damages against the owner of the building, United Novelty & Premium Co. The owner of the building, which was four stories in height, utilized the first floor as a sales room and the third and fourth floors for storage. The second floor was leased to and in the possession of Levinthal Bros., Inc., the deceased's employer, which company the defendant-owner brought upon the record as an additional defendant. At trial the jury returned verdicts for the plaintiff against both defendants jointly in the sum of $15,000 in the survival action and $2,500 in the wrongful death action. The original defendant filed motions for a new trial and for judgments n.o.v. while the additional defendant moved only for judgments n.o.v. The motion for a new trial was withdrawn at bar, and, after argument, the court en banc granted the n.o.v. motions of both defendants and entered judgments in their favor. The plaintiff brings this appeal from the judgment for the original defendant.

The accident which caused Lane's death was unwitnessed. Consequently, the plaintiff's case rests necessarily upon circumstantial evidence. The sole question raised by this appeal is as to the sufficiency of the evidence adduced at trial to carry the case to the jury on the question of liability.

Viewing the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff, as the jury's verdicts require, it appears that, on the

[ 389 Pa. Page 201]

    morning of the fatal accident, Lane had been working with Sidney Levinthal, a representative of the lessee company, bringing freight from the first floor of the building to the second floor by means of an elevator. It was about twenty minutes before the accident was discovered when Levinthal had first missed Lane. The latter's stepfather, who was employed in a parking lot across the street from the first floor outside entrance to the elevator, testified that Lane had visited him about the time just indicated. When Levinthal went to look for Lane he found his body caught and crushed between the elevator car and the second floor gate at the third floor landing with his legs dangling in the elevator shaft. His head, which was facing toward the interior of the elevator car, and shoulders were above the floor of the car with his arms resting on the car floor. He was pronounced dead upon arrival at the hospital to which he was immediately removed after his body had been extricated by a rescue unit of the Philadelphia Fire Department.

The car of the elevator was so constructed as to admit of access thereto from two sides and so could be directly entered from the street outside, as well as from within the building, when the elevator was at the ground floor. The open side of the elevator toward the exterior wall of the building was protected by a folding gate which was equipped with an electric interlock - a device which automatically barred operation of the car unless the gate was closed. The side of the elevator car from which access to the various floors of the building could be had was open but the opening was guarded at each floor by vertically rising counterbalanced wooden slatted gates which operated up ...


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