Appeal, No. 483, Jan. T., 1961, from judgment of Court of Common Pleas No. 6 of Philadelphia County, June T., 1956, No. 10966, in case of Elwood Rodgers v. Sun Oil Company. Judgment reversed; reargument refused February 15, 1962.
Richard W. Hopkins, with him White & Williams, for appellant.
James M. Moran, with him Beasley & Ornsteen, for appellee.
Before Bell, C.jm Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. JUSTICE EAGE
Plaintiff suffered injuries in an unusual accident, while a business visitor at a gasoline station of the defendant corporation. This action for damages resulted. At trial, the jury awarded plaintiff $10,000. The court en banc denied motions for judgment notwithstanding the verdict or a new trial. From the judgment upon the verdict, defendant appeals.
Was the defendant entitled to judgment n.o.v.? The sole question for determination in resolving this issue is: Whether or not the evidence presented is sufficient to sustain a finding of negligence on the part of the defendant or its employee? In so doing, the testimony must be read in the most favorable light to plaintiff's cause, giving him the benefit of every fact and inference of fact reasonably deducible from the evidence: Greco v. 7-Up Bottling Co. of Pittsburgh, 401 Pa. 434, 165 A.2d 5 (1960); Matkevich v. Robertson, 403 Pa. 200, 169 A.2d 91 (1961).
The record discloses the following: On March 26, 1958, plaintiff drove his automobile, a 1948 Oldsmobile, into defendant's gas station for the purpose of refueling, tightening the emergency hand brake and differential lubrication. The plaintiff also requested the attendant to run through the engine "Bardhal," a chemical compound with a light oil base, used to free sticky valves and to burn out carbon in the engine. Since "Bardhal" was not in stock, the attendant suggested
to plaintiff that a comparable compound manufactured by the defendant corporation, known as "Suntune," be used. To this, plaintiff agreed.
In order to run such a product through the engine, it is necessary to remove the breather cap from the top of the carburetor, pour the additive directly into the carburetor and thence into the engine. At the same time, it is also necessary to accelerate the motor to a high speed to induce proper circulation of the additive.
The attendant began the task of pouring the "Suntune" into the engine of the automobile. A huge volume of smoke emitted from the exhaust. The attendant instructed the plaintiff to move the automobile to a certain spot on the leeward side of the gas station (this was an inclined area) to leave the motor running, to put the emergency brake on, and to put the gearshift into neutral. When this was done, the attendant then resumed the job of pouring the additive into the engine. While so doing, he accelerated, or raced the motor to a great speed by hand manipulation. As this was in progress, plaintiff stood alongside of the automobile watching the operation. Suddenly, the automobile jumped into gear, lurched ...