Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SMITH v. ESSLINGER'S (01/21/58)

January 21, 1958

SMITH
v.
ESSLINGER'S, INC., APPELLANT.



Appeal, No. 291, Oct. T., 1957, from judgment of Court of Common Pleas No. 4 of Philadelphia County, March T., 1955, No. 9088, in case of Edward J. Smith v. Esslinger's, Inc. Judgment affirmed.

COUNSEL

Thomas E. Comber, Jr., with him K. Robert Conrad and Pepper, Bodine, Frick, Scheetz & Hamilton, for appellant.

Stephen M. Feldman, with him Joseph G. Feldman and Feldman & Feldman, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Gunther

[ 185 Pa. Super. Page 202]

OPINION BY GUNTHER, J.

This appeal by defendant is from the refusal of the court below to enter judgment notwithstanding plaintiff's verdict. The action was commenced in trespass for damages sustained by plaintiff while delivering chemicals to defendant, Esslinger's, Inc., a brewery in Philadelphia. Edward J. Smith, plaintiff, on April 9, 1954, drove up to and stopped his truck along the side of defendant's building. He was directed by the receiving clerk to deliver the chemicals to a certain location along the side of the brewery where a door was located on level with the discharging door on the side of plaintiff's truck. Plaintiff delivered merchandise to defendant's brewery on previous occasions, but at no time to this particular part of the premises. While plaintiff was about to unload, a door, which he did not notice, was opened from the inside. After the

[ 185 Pa. Super. Page 203]

    drum was unloaded through the open door, the receiving clerk requested plaintiff to close the door which consisted of two panels. Plaintiff grasped the door and pulled downward and, as the door closed, plaintiff's fingers were caught between the upper and the lower portions.

After trial by jury, a verdict in the sum of $1,500 was awarded to the plaintiff. Defendant filed a motion for judgment n.o.v. which was denied by the court below. The amount of the verdict is not questioned.

Two questions are before us for determination: (1) Was there a jury question as to whether or not the defendant was negligent? (2) Was plaintiff contributorily negligent as a matter of law? As to the first question, the evidence indicates that plaintiff was on the premises as an invitee to whom defendant owed a duty of protection from bodily harm. A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, (a) he knows, or by exercise of reasonable care could discover, the conditions which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to enter or remain upon the land without exercising reasonable care to make the conditions reasonably safe, or to give a warning adequate to enable them to avoid the harm. Restatement of Torts, section 343. See also Subasky v. Great Atlantic and Pacific Tea Company, 161 Pa. Superior Ct. 90, 53 A.2d 840.

A possessor, who holds his premises open to others for his own business purposes, must exercise a knowledge of the dangerous qualities of the appliances provided therein (as doors automatically closing from the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.