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PHILLIPS v. ROSENBERG. (01/16/61)

January 16, 1961

PHILLIPS, APPELLANT,
v.
ROSENBERG.



Appeals, Nos. 219, 220, and 221, March T., 1960, from judgment of Court of Common Pleas of Beaver County, March T., 1959, No. 296, in case of James Phillips, Jr., a minor, et al. v. Louis Rosenberg, individually and trading and doing business as Rosenberg Auto Parts Company. Judgment reversed.

COUNSEL

Ralph S. Davis, Jr., with him Evans, Ivory & Evans, for appellants.

John D. Ray, with him Ray, Good & Hudson, for appellee.

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

Author: Musmanno

[ 402 Pa. Page 392]

OPINION BY MR. JUSTICE MUSMANNO.

Anthony Gaudio, truck driver, daily patrolled the Pennsylvania Turnpike looking for disabled automobiles to offer to their drivers the repair or towing facilities of his employer, Louis Rosenberg, individually and trading and doing business as Rosenberg Auto Parts Company. During weekends and holidays, business was brisk because of the strange but unhappily true association between festive day and automobile wrecks, but on other days Gaudio traveled the highway in monotony and loneliness. To overcome the tedium of this solitary vigil, he adopted the practice of taking along as passenger some member of his family. He would also pick up soldiers thumbing a ride home or to camp. Sometimes, and as often as four times a week, friends would accompany him. He explained that by having companions, "you at least had some conversation to keep you occupied."

On August 27, 1957, he had for his companion of the day his nine-year-old cousin, Jimmy Phillips, who was injured in an accident which is the subject of this litigation. The boy's parents, in the boy's behalf and in their own right, brought suit in trespass against Louis Rosenberg. The action resulted in a compulsory non-suit. On refusal of a court en banc to lift the non-suit, the plaintiffs appealed.

Resolving all conflicts in the testimony, and inferences arising therefrom, in favor of the plaintiffs, as we are required to do in considering the matter of a non-suit, the accident happened in the following wise.

On the morning of August 27, 1957, at about 8 o'clock Gaudio picked up Jimmy at his home, and the boy remained with him all morning as he from time to time stopped to render aid to stranded automobiles, restoring life to dead motors and giving mobility to

[ 402 Pa. Page 393]

    wheels which had refused to turn. At noontime he took Jimmy to a wayside restaurant and then, having lunched, they set off to look at a disabled Buick which had been abandoned at a point close to the Gateway Interchange in Beaver County. Since this wreck was beyond immediate repair, Gaudio prepared to tow it to his employer's repair shop. He told Jimmy to get out of the truck and stand close to the wrecked Buick to advise him as he backed toward the front of the car. At the trial Gaudio testified that he instructed Jimmy: "I am going to back up to this Buick there, and you holler out when I am close to the bumper so I won't have to get in the truck myself two or three times and try to back up and hit the bumper... Let me know when this plate touches the bumper."

Jimmy complied with instructions and "hollered" to his "Uncle Tony" to stop at the appropriate time. Gaudio then dismounted from the cab of the truck and got under the front of the Buick to attach the lifting chains which were controlled from the crane in the body of his own truck. While he was doing this, Jimmy got back into the truck and put on a pair of red canvas gloves he found in the cab. He then took up a position beside the tripod from which suspended the pulley through which the steel cable passed during the operation of the lifting apparatus.

He had his right hand on the cable as he watched Gaudio working at the Buick. He was in full view of Gaudio who, having now attached the chain to the disabled Buick, advanced to the towing truck and pulled the lever which threw the lifting mechanism into gear. The cable at once began to rise rapidly toward the pulley. Jimmy's hand went with it and jammed into the pulley, and in an instant Jimmy's thumb was torn from the rest of his hand. He cried out: "Uncle Tony, my thumb!" Gaudio leaped to throw the machine out of gear, but in the meantime the boy had not only lost

[ 402 Pa. Page 394]

    his thumb but suffered other injuries. He was taken to a hospital by ambulance.

The lower court, in entering a compulsory non-suit, pronounced Jimmy Phillips a trespasser and, therefore, not entitled from Gaudio to the care which otherwise would be the norm expected of any person handling a dangerous instrumentality in the presence of others. But Jimmy's status, as he rode with Gaudio and then cooperated with him at the scene of the accident, was not so definitely fixed by testimony that the court could declare as a matter of law that he was a trespasser. And even if Jimmy were a trespasser, he would still have the right to press for a verdict if he could show that Gaudio's conduct was such as to come within the rule of responsibility for wilful and wanton misconduct.

In the case of Slother v. Jaffe, 356 Pa. 238, 243, the trial court entered a non-suit against the plaintiff who had been a rider on the defendant's truck under circumstances which questioned his right to be on the truck. This Court reversed the non-suit and sent the case back for a new trial, Mr. Justice LINN stating: "It may be that plaintiff will produce evidence from which the jury may find that the driver had implied authority to invite plaintiff to ride on the truck. If that shall appear to have been the fact, the defendant's liability for the driver's negligence will follow on familiar principles. On the other hand if no authority to bind the defendant is shown and the jury finds the plaintiff to have been a trespasser injured by the driver's wanton misconduct in the management of the truck after plaintiff's protest, another question will arise."

In the case at bar, the status of Jimmy in relationship to the defendant was strictly one of fact. It is not enough to say, as the trial court said: "In the testimony there is no evidence of authority from defendant to

[ 402 Pa. Page 395]

    transport others in the truck, except those with whom defendant was doing business. There are no circumstances which might warrant an implied authority by acquiescence. We conclude that minor plaintiff was a trespasser as to defendant."

It was not necessary, in order to prove that Jimmy was legally on the truck, that the defendant had given specific authority to Gaudio to take his cousin on the ride with him. The lonely nature of Gaudio's work invited companionship. The jury could infer from the circumstances that the defendant knew this. Gaudio freely admitted that he transported relatives, friends and soldiers who asked for a lift. The defendant's firm was not so large and its operations not so extensive that the practices of his five or six drivers would not become a matter of common knowledge to those handling the affairs of the concern for him.

The lower court said: "In that evidence there is no indication that defendant knew or should have known ...


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