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CROTTY v. READING INDUSTRIES (09/22/75)

decided: September 22, 1975.

CROTTY, APPELLANT,
v.
READING INDUSTRIES, INC.



Appeal from judgment of Court of Common Pleas of Berks County, March T., 1972, No. 10, in case of J. Edward Crotty v. Reading Industries, Inc.

COUNSEL

Stephen W. Graffam, with him Jerome W. Kiger, and Grogan, Graffam, McGinley & Solomon, for appellant.

Richard A. Bausher, with him Stevens & Lee, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Price, J.

Author: Jacobs

[ 237 Pa. Super. Page 3]

The appellant, Edward Crotty, was injured in an industrial accident while working as an independent contractor on the premises of the appellee, Reading Industries, Inc. [hereinafter Reading]. The appellant filed an action in trespass against Reading contending that the negligence of its agent or employee in starting an industrial machine on which the appellant was working, without first ascertaining that the machine could be started safely, was the proximate cause of appellant's injuries.*fn1 Upon trial of the cause a jury returned a verdict in favor of Reading Industries and against the appellant. Appellant moved for judgment n.o.v. or a new trial both of which were denied by the lower court. We reverse and grant a new trial.

The facts surrounding this unfortunate injury may be summarized briefly. The appellant was employed by Aetna Standard Engineering Company [hereinafter Aetna] as an engineer whose duties included the providing of technical assistance in field installation of equipment

[ 237 Pa. Super. Page 4]

    purchased from Aetna. At the time of the accident he was engaged in such a capacity at a plant being constructed by Reading, which had purchased from Aetna four large industrial machines used in the production of copper tubing. The appellant was totally familiar with the machines being installed and had provided technical assistance in their installation at this Reading factory on four separate occasions, totaling in all some eight working weeks.

The particular machine on which the appellant was injured utilized a large carousel-type conveyor system which fed material into the machine. In order to make adjustments to the machine, which was not yet in operation, it was necessary for the appellant to step into this carousel system. The evidence reveals that on his way to the machine the appellant passed its control panel and pushed the "stop" button which shut off the power to the carousel system. The appellant was aware that there were two additional power switches, one a "knife-type" switch located on the back of the control panel which controlled power to the carousel system, and another some 160-170 feet away which was the main power switch for the entire machine. Nevertheless, he only used the "stop" button on the control panel. The evidence reveals that the appellant was aware that the carousel system could be started after the stop button had been pushed merely by pressing two buttons, one labeled "on", the other "index."

While the appellant was engaged in making adjustments to the machine an employee of Reading, unaware that the appellant was standing on the carousel system a bare seven feet away, pushed the two buttons and set the system in motion. The appellant, unable to vault free of the machine, was carried into its midst sustaining serious injuries.

The issue presented in this appeal is whether the lower court erred in refusing to charge the jury on the duty owed by a possessor of land to a business visitor.

[ 237 Pa. Super. Page 5]

The court below charged the jury only in general negligence terms*fn2 omitting completely any discussion of duty. The appellant contends that his points for charge which were submitted, denied, and properly preserved for appellate review, represent accurate statements of the law regarding the duty owed by a possessor of land to a business visitor, and that the court committed reversible error in denying them.

It is axiomatic that in reviewing the adequacy of a charge we must review the charge as a whole taken in its entirety. Commonwealth v. Rodgers, 459 Pa. 129, 327 A.2d 118 (1974); Commonwealth v. Fell, 453 Pa. 531, 309 A.2d 417 (1973). In the instant case, a complete review of the charge reveals that the trial court instructed the jury on the general principles of negligence,*fn3 proximate cause and contributory negligence but not on the duty of care owed by a possessor of land to a business visitor. "The primary duty of a trial judge in charging a jury is to clarify the issues so that the jury may comprehend

[ 237 Pa. Super. Page 6]

    the questions they are to decide." Archer v. Pa. R.R. Co., 166 Pa. Superior Ct. 538, 541, 72 A.2d 609, 611 (1950); see De Reeder v. Travelers Ins. Co., 329 Pa. 328, 198 A. 45 (1938). The instructions must give the jury a reasonable guide for the determination of the question of the defendant's alleged negligence, Faulkner v. Delph Spinning Co., Inc., 245 Pa. 40, 91 A. 607 (1914) and on the degree of care required of the defendant. Archer v. Pa. R.R. Co., supra. "The jury [can] not determine whether the defendant [is] guilty of negligence without knowing the degree of care required of the defendant . . . ." Kelchner v. Nanticoke Borough, 209 Pa. 412, 418, 58 A. 851, 853 (1904).

It is important to note, however, that in the case at bar the appellant did not object to the court's failure to charge on the aspect of duty. His specific objections were to the court's refusal of his submitted points for charge. Therefore, we must examine the submitted points to determine whether they represent accurate and applicable statements of the law. If they do not, the court was correct in refusing them and any omissions by the court with respect to the aspect of duty have been waived. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Appellant's first requested point for charge states:

"[a] business visitor is a person who is invited or permitted to enter or remain on land in possession of another for a purpose directly or indirectly connected ...


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