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PAYNE v. WHEELER ET AL. (12/16/65)

decided: December 16, 1965.

PAYNE
v.
WHEELER ET AL., APPELLANTS



Appeal from judgment of Court of Common Pleas of Crawford County, May T., 1962, No. 40, in case of Milton C. Payne v. E. Merwin Wheeler, administrator of estate of Earl W. Wheeler, deceased, et al.

COUNSEL

Stuart A. Culbertson, with him Paul E. Allen, for appellants.

F. Joseph Thomas, with him R. Charles Thomas, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Jacobs, J.

Author: Jacobs

[ 207 Pa. Super. Page 26]

Defendants appeal from a judgment entered on a verdict of $6,500 awarded to the plaintiff in his trespass action. The essential facts are well summarized in the able opinion of President Judge Thomas for the court below:

"The plaintiff was twenty-three years old and was in the farming business, running his own farm as well as managing a farm partly 'on shares' for another person. On June 27, 1960, a mowing machine which he was operating in his farming operations needed repairs and he went to the business establishment of the defendant to get three small parts to repair his mowing machine. Accompanying him to the defendant's place of business was his friend Frank Hites. The defendant's business was temporarily being carried on in an old building approximately 40 x 50 feet because a fire had damaged or destroyed their previous permanent

[ 207 Pa. Super. Page 27]

    place of business. On the day in question, after inquiry about the parts, the plaintiff and Mr. Hites were directed by the deceased partner, Earl W. Wheeler, to go upstairs to the second floor to look for the parts requested, as apparently spare parts and certain damaged or burned parts recovered from the fire were stored there. The second floor was not used generally to serve customers but was accessible from an open stairway erected against the rear inside wall of the building.

"The plaintiff and Hites, with Hites leading, proceeded up the stairway and remained on the second floor for a period of time. In coming down, the plaintiff preceded Hites and was descending the stairway with a small chain, approximately 30 inches in length, and two other small parts in his hand. As he proceeded down the stairs, he slipped down the steps and in an effort to catch himself, thrust his left hand through a large window at the foot of the stairs, severely cutting his left arm above the wrist. The injury was a cut on the volar surface of the left arm and required the services of a physician who took approximately 15 to 20 sutures. The left arm was carried in a sling for a week or ten days and the plaintiff was unable to use his left arm with any efficiency for normal farm work for approximately six weeks. After two or three months the plaintiff was again able to use his arm in a normal fashion, but the plaintiff presented testimony showing his damages from loss of work, inability to plant and harvest crops, and the expenses of employing others to do certain farming operations for him during his disability period."

Defendants ask this court to enter a judgment n.o.v. or to grant a new trial. We reject their contentions and agree with the lower court that the jury verdict should not be disturbed.

In arguing for a judgment n.o.v. defendants would have us hold that plaintiff's ...


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