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BREWSTER v. MORRONE (05/28/59)

May 28, 1959


Appeal, No. 2, March T., 1959, from judgment of Court of Common Pleas of Lawrence County, June T., 1957, No. 51, in case of Sarah Smith Brewster, executrix of the last will and testament of Robert L. Smith, deceased v. Emanuel Morrone et al. Judgment reversed. Trespass for personal injuries.Before LAMOREE, P.J. Verdict entered for plaintiff in amount of $20,000; defendants' motion for judgment n.o.v. refused and judgment entered. Defendants appealed.


J. Glenn Berry, for appellants.

Howard W. Lyon, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Bell

[ 395 Pa. Page 643]


Plaintiff recovered a verdict in trespass for personal injuries. Defendants' motion for judgment non obstante veredicto was dismissed, and from the judgment entered on the verdict, defendants took this appeal. In considering defendants' motion for judgment n.o.v., we shall of course consider the evidence and all reasonable inferences therefrom in the light most favorable to plaintiff.

Plaintiff, who was 31 years of age and blind in one eye, was employed by a catering concern near New Castle, in Lawrence County. His duties were to deliver coffee and sandwiches to various factories and garages where he could likely sell the food to employees in such factories. Defendants conduct a small auto body shop in a building made of cement blocks on East Washington Street Extension, next to the Ellwood

[ 395 Pa. Page 644]

City-New Castle Road, a public road. For 6 days a week and for 6 months prior to the date of the accident on April 29, 1955, plaintiff had sold coffee and sandwiches in defendants' shop to their employees. On the morning of the accident plaintiff arrived about 11 o'clock a.m., as was his custom, and called "coffee man". It was a bright day, the sun was shining, the body shop was filled with light, and visibility was excellent. Plaintiff saw a large automobile about 4 feet ahead of him. He walked forward without looking at the automobile because his attention was directed to tools on the floor. As he walked along the floor looking at the floor, his head struck a large plank which was used to raise the body of the automobile from the frame or chassis in order to change frames or make necessary repairs. This 2 by 6 inch plank was 10 feet long. The ends of the plank were equipped with Ubolts attached to chains extending from a pulley which, in turn, was attached to a slide on the garage ceiling. By this means they were able to hoist the body of the automobile and thereby remove the chassis. It extended through the window of the automobile (which was being repaired) from 2 to 4 feet over the floor of the defendants' shop between the automobile and the East wall of defendants' shop.Plaintiff testified he struck his left eye on this plank and was knocked to the floor. No one saw the accident as defendants' employees were at that time in the rear of the shop. There were 24 panes of clear glass in each of the two large garage doors in defendants' body shop and the accident occurred about 15 feet from these doors.

Plaintiff was assisted to his feet by defendants' employees and after assuring them that he was all right, continued the balance of the day to see his regular customers. Plaintiff about 6 weeks later lost the sight of his left eye, which left him totally blind. There

[ 395 Pa. Page 645]

    is no evidence that defendants had any knowledge before the accident that plaintiff had lost the sight of his right eye.

Two questions are presented: (1) Did plaintiff prove that defendants were guilty of negligence; and (2) Was it clear as a matter of law that plaintiff was guilty of contributory negligence? Both questions must be answered in favor of the defendants.

Plaintiff alleges that defendants were negligent because they permitted tools to lie on the floor, and they permitted the plank to extend from the window of this car and failed to warn plaintiff of the danger of this plank, and because they failed to erect a barricade around this dangerous area.

Plaintiff produced no evidence that defendants were engaged in any enterprise in a manner other than standard operating procedure in a repair shop. The raising of an automobile body by means of a large plank or lever is an absolutely essential operation in the conduct of defendants' business and to require every little body maker or repair shop owner to barricade this or other essential ...

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