Appeal, No. 270, Jan. T., 1957, from judgment of Superior Court, Oct. T., 1956, No. 243, reversing judgment of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1955, No. 1971, in case of John Eberle, Executor under the Will of Mary Eberle, plaintiff, wife of John J. Eberle, Claimant, substituted plaintiff, v. Union Dental Company and American Employers Insurance Company. Judgment affirmed; reargument refused September 27, 1957.
Joseph G. Feldman with him Stephen Marc Feldman, Edward J. Marcantonio, and Feldman and Feldman, for appellant.
Peter P. Liebert, 3rd, with him John J. McDevitt, 3rd, for appellees.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
Eberle applied for Workmen's Compensation, averring that he "was leaving the premises of his employer at about 5:35 p.m. on June 17, 1952" and "slipped on a banana peel" and fractured his pelvis. He subsequently died, as did his widow, and the present claim is being made by his son and heir for Workmen's Compensation for the period from the date of his injury, namely, June 17, 1952, until his death on September 12, 1955.
The pertinent facts are briefly as follows:
Eberle, a man then seventy years of age, was employed by Union Dental Instrument Manufacturing Company as a bench hand. The Dental Company was one of a number of tenants in a building at 32nd and Arch Streets, Philadelphia. Claimant's place of employment was on the third floor of the building. On the day of the accident he had completed his day's work, left the third floor, walked down to the street, walked out of the building through an exit door on the 32nd Street side of the building and walked south on the public sidewalk on 32nd Street to go to his home. Eberle slipped and fell on a driveway which crossed the public sidewalk and led to a loading door of the building which was used by the Union Dental Company. The "driveway" in question is a brick paved section of the public sidewalk on the west side of 32nd Street. The loading door abutting this portion of the sidewalk was marked with a sign: "Union Dental Company Dasher Manufacturing Company Shipping and Receiving."
The lease by the owners of the building to Union Dental Company provides: "All covenants and agreements herein contained to the contrary notwithstanding, it is understood and agreed that an area approximately twelve feet by thirty feet in the rear portion
of the demised premises at the loading door is reserved by lessor for use as a common*fn* shipping area for the occupants of other portions of the building of which the demised premises is a part. Lessee agrees that lessor may at any time during the term of this lease or any renewal thereof, erect an enclosure or partition to divide said shipping area from the first floor of the said south building. ..."
Notwithstanding this lease, it was conceded that ever since 1949 Union Dental Company has had the exclusive use of the loading platform for access to the area on the ...