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LATCH v. REBURN (09/21/71)

decided: September 21, 1971.

LATCH, APPELLANT,
v.
REBURN



Appeal from order of Court of Common Pleas of Delaware County, No. 416 of 1968, in case of Joseph Latch v. Norman Reburn and Francis R. Buck and Harry Garabedian.

COUNSEL

John Paul Curran, for appellant.

Joseph T. LaBrum, Jr., with him Francis T. Sbandi, and Fronefield, deFuria & Petrikin, for appellee.

R. Barclay Surrick, with him Cramp and D'Iorio, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., Watkins and Montgomery, JJ., dissent.

Author: Hoffman

[ 220 Pa. Super. Page 397]

This case involves an action for damages resulting from personal injuries sustained from a fall in defendant-appellees' gasoline service station. According to

[ 220 Pa. Super. Page 398]

    plaintiff-appellant's testimony, he stopped his car at the station in order to purchase gasoline. As the tank was being filled appellant, who had never been inside the garage, asked the attendant for directions to the rest room. The attendant directed him "to go in the side door, turn to the left, to the extreme front end of the car, make a sharp right and the men's room is directly across from that." Appellant walked in the door, turned left alongside the car parked in the garage, and at the front of the car made "a sharp right, as I was instructed to do." At this point he fell into a repair pit, which was protruding about thirty inches from under the car, and suffered extensive injuries. Appellant testified that he did not see the pit because the car covered most of it and because the car's shadow made the area of the pit opening very dark.

At the conclusion of testimony the lower court, sitting with a jury, granted appellees' motions for directed verdicts. The instant appeal followed.

The parties agree that appellant was a business invitee. As such the occupiers of the premises had the affirmative duty to keep the premises reasonably safe and to give him adequate warning of dangerous conditions. Mathis v. Lukens Steel Co., 415 Pa. 262, 203 A.2d 482 (1964). However, there was no duty to warn appellant against a danger that was obvious. McCreery v. Westmoreland Farm Bureau, 357 Pa. 567, 55 A.2d 399 (1947). In granting a directed verdict the lower court found that the repair pit was an obviously dangerous condition and that appellant was contributorily negligent as a matter of law for failing to avoid this obvious danger. The issue before this Court on appeal is whether the jury should have been allowed to consider whether the danger was obvious.

It has long been the law in Pennsylvania that a judgment of non-suit can be entered only in obvious cases and the plaintiff ...


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