Before BIGGS, Chief Judge, McLAUGHLIN, Circuit Judge, and SHERIDAN, District Judge.
McLAUGHLIN, Circuit Judge.
Reading Company owns a trestle in Philadelphia beneath which it has coal bins. The bins extended down from the tracks to about thirteen feet above the ground. Reading leased part of the area, containing forty-eight bins, to United Eastern Coal Sales Corporation. Dickerson, the deceased, was an employee of the latter. On June 9, 1954, he and a coworker had a truck under one of the said leased bins (# 56) and were filling it with coal from the bin. The flow of the coal stopped and Dickerson, for the purpose of correcting the clogged condition, climbed up a ladder attached to the wall of the bin to the trestle. Shortly after that a dull thud was heard within the bin and Dickerson was found there with his head buried in the fine coal which was all around him. He could not be revived. It is stipulated that he died of suffocation.
After the accident the third rung from the top of the ladder was found to have been torn loose from the left side of the ladder and hanging down from the right side to which it was still attached. Based on the circumstances then present there was testimony that the break was fresh. And there was evidence that the ladder was "makeshift", poorly and defectively constructed. For at least ten years past it had been located where it was at the time Dickerson fell. The lease gave Reading authority to inspect the demised premises at any time. Reading did make such inspections and did make extensive repairs to the premises including the bins. The last time prior to the accident it repaired Bin # 56 was on April 28, 1953.
Plaintiff, as administratrix of the estate of the deceased, sued Reading which joined United Eastern as a third-party defendant. The case was tried in January of 1959. The jury in awarding a verdict to plaintiff found both the defendant and the third-party defendant negligent. The court denied Reading's motion for judgment and in the alternative for a new trial. Reading's motion for summary judgment against United Eastern under an indemnity provision in the lease between the parties was also denied, the court holding that Reading was not entitled to be indemnified by the lessee.
There is no need of going into any further factual detail. If the Reading Company owed a duty to Dickerson as an employee of United Eastern to keep the premises safe or to use care to do so, plainly there was enough trial evidence to warrant the plaintiff's verdict.
We think the landlord owed Dickerson that duty. By the tenth condition of the lease United Eastern's responsibility for maintenance and repairs was confined to:
"* * * all appurtenant sidewalks, driveways, curbs, cellar doors, awnings and other facilities located in, on or over said sidewalks and driveways during the term of this lease or any extension or renewal thereof * * *"
The trial court held as a matter of law, properly in our judgment, that the condition did not include the bins; that this was not where a landlord merely reserved its right to maintain and repair but in designating with particularity the scope of the tenant's responsibility for maintenance and repair, it impliedly agreed to keep the bins and their appurtenances in good repair. The proofs, as we have said, support the conclusion that the railroad did not do so and that the accident involved was caused thereby.
Dickerson's status as a "patron" of the railroad under the protection of the Pennsylvania Public Utility Code, Section 1171*fn1 is upheld in the concurring opinion of Chief Judge Biggs. That opinion also makes it very clear that the Reading Company was using its side track unit, including the particular bin ladder, in its public utility functioning under the Pennsylvania Public Utility Code, 66 P.S. § 1102(10). In addition, the Pennsylvania governing decisional law has now pretty much dispelled any doubt that might have heretofore existed about Dickerson also coming under the protection of the same section of the Code as a member of the public. In West Penn Power Co. v. Pa. P.U.C., 199 Pa. Super. 25, 184 A.2d 143 (Sept. 13, 1962) it was held that the public to whom a public utility owed the duty of care included the employees of a farmer over whose land the utility's proposed right of way was to extend. The court, page 32, quoted with approval its statement in Lower Chichester Township v. Pa. P.U.C., 180 Pa.Super. 503, 119 A.2d 674 (1956):
"'The public for whose convenience, accommodation, safety, and protection the Public Utility Law is concerned does not consist solely of persons served by the utility, but also includes persons generally who may come into contact with the utility's facilities'."
"We cannot agree with appellant's argument that public safety is not involved in the instant case. There is an abundance of testimony in the present record to support the conclusion that persons lawfully using the Simmons property would constantly be exposed to the hazard created by the proposed line. We are of the opinion that such persons are members of the public within the meaning of the statute."
The Lower Chichester Township opinion passed upon the word "public" in Section 1171 which is our present concern. See also Postal Telegraph-Cable Co. v. Pa. P.U.C., 154 Pa.Super. 340, 345-46, 35 A.2d 535 (1944). And it is the settled Pennsylvania law that the Public Utility Code must be broadly construed in order for it to accomplish its expressed objectives. Commonwealth v. McHugh, 406 Pa. 566, 178 A.2d 556 (1962); United States v. Pa. P.U.C., 184 Pa.Super. 380, 135 A.2d 93 ...