Appeal from judgment of Court of Common Pleas of Lancaster County, Oct. T., 1961, No. 62, in case of Winter R. Wilson v. Howard Johnson Restaurant.
John Milton Ranck, with him Charles Foltz Herr, and Appel, Ranck, Herr & Appel, for appellant.
John I. Hartman, Jr., with him Windolph, Burkholder & Hartman, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Eagen concurs in the result. Mr. Justice Musmanno dissents. Concurring Opinion by Mr. Justice Roberts.
This appeal follows an action of trespass wherein the appellant, Winter R. Wilson, sought to recover damages for personal injuries from the defendant-appellee, Penn Turnpike Shops, Inc., a corporation doing business under the fictitious name of Howard Johnson Restaurant. On January 13, 1960, appellant, a 51 years old truck driver employed by the Spector Freight Systems, Inc., was driving a heavily loaded diesel bound for Albany, New York, in an easterly direction, over the Pennsylvania Turnpike. There were two drivers on the truck, and appellant occupied the driver's seat at Bedford, Pennsylvania, at 1:30 A.M. and drove until he reached the defendant's turnpike restaurant at Bowmansville, Pennsylvania, at approximately 5:30 A.M., where he stopped to get a cup of coffee. During the night, the truck had been travelling through conditions described as raining and freezing, and the temperature hovered around the freezing mark. The road surface was wet but not frozen, and the bridge surfaces were icy. Appellant parked his truck in the parking
area outside the restaurant, which area was wet but not icy, and proceeded toward the entrance to appellee's restaurant. Approximately 50 feet from the entrance, he stepped onto the concrete sidewalk where he took a couple of steps and slipped on a sheet of smooth, wet ice and catapulted into the air, landing on a picket fence which was near the walk. The extent of the injuries suffered was never disclosed at trial because the lower court granted appellee's motion for compulsory non-suit at the conclusion of the presentation of appellant's evidence as to liability.
Following the granting of the compulsory non-suit on November 16, 1964, appellant, on December 24, 1964, filed a motion to amend the complaint by the addition of the following paragraph 9 (e): "In maintaining or permitting to be maintained a wooden picket fence at the edge of the walk, in that defendant knew or should have known that anyone falling on the fence would be seriously injured thereby."
Appellant moved to take off the non-suit and later presented a motion to amend the complaint. The lower court denied both motions and this appeal followed.
The motion to amend the complaint, in effect, requested the allowance of an averment of negligence because of the maintenance of a fence beside a sidewalk, in such circumstances that appellee knew or should have known that anyone falling on said walk would probably fall upon the fence and be seriously injured thereby.
Appellant's original cause of action was based on appellee's negligence in permitting ice to form on its sidewalk; appellee's failing to salt the sidewalk, or to render the slippery surface safe in some other manner, such as spreading of ashes.
In considering the appeal from the refusal of the court below to take off the non-suit, appellant must be given the benefit of ...