Appeal from the Order of the Superior Court of Pennsylvania, at No. 529 April Term, 1973, affirming the Order Denying Removal of Compulsory Non-suit dated August 22, 1973, of the Court of Common Pleas, Civil Division of Allegheny County, Pennsylvania, at No. 644 April Term, 1971.
Andrew J. Banyas, III, Pittsburgh, for appellant.
James E. Coyne, Lancaster, Mentzer, Coyne & Duffy, Pittsburgh, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Roberts and Pomeroy, JJ., join in this opinion. Nix, J., filed a concurring opinion in which Roberts and Pomeroy, JJ., join.
This is an appeal from an order of the Superior Court affirming the trial court's denial of a motion to remove a compulsory non-suit in a negligence case brought by appellant, Mamie M. Ford, against appellee, James Jeffries, Sr. Ford v. Jeffries, 229 Pa. Super. 716, 322 A.2d 671 (1974). We granted appellant's petition for allowance of appeal and this appeal followed. Appellant contends that the trial court improperly granted appellee's motion for a compulsory non-suit after appellant had rested her case. We agree, and therefore vacate the order of the Superior Court affirming the Court of Common Pleas and, reverse the order of the Court of Common Pleas denying the motion to remove the compulsory non-suit.
An order granting a non-suit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause
of action have been established. Watkins v. Sharon Aerie No. 327 F.O.E., 423 Pa. 396, 223 A.2d 742 (1966). We must therefore review the evidence to determine whether the appellant was entitled to have the jury consider whether appellee engaged in negligent conduct toward the appellant and, if so, whether appellee's conduct was the proximate cause of the harm suffered by the appellant.
Appellant's evidence, and the reasonable inferences arising therefrom, indicate the following. Appellee owned a dwelling house which he purchased as an investment for rental to tenants. This house was located about five or six feet from the appellant's home, on the adjoining lot. The last tenant to occupy appellee's rental property vacated the premises in the fall of 1968. The property was in a state of disrepair: windows were broken; beneath one window was a large hole; another hole, located in the foundation wall, had been stuffed with rags; several other holes existed in the outside walls; lattice work between a frame porch and the ground had been torn down; the property harbored large rats; dogs wandered in and out of the basement; and unpleasant odors emanated from the property.
Appellant complained to appellee about the condition of the property, but nothing was done. Appellant then reported the condition of the property to the City of Pittsburgh, and a representative of the city visited the property. Appellee learned about the appellant's complaint to the City of Pittsburgh and complained to her that she should not have reported him. Appellee promised that he would "fix up everything." Some minimal repairs were made, but appellee's house continued in a state of disrepair. The holes in the outside walls and foundation of the house remained.
On July 30, 1969, at 2:27 a.m., after the house had been vacant and in a state of disrepair for some months, a fire started in appellee's house, damaging parts of the first and second floors. Appellee made no repairs to the house after this fire, except that crossboards, forming an "X", were placed over broken windows. On September 25, 1969, appellant renewed her complaint to appellee about the condition
of the property, telling appellee that she wished something would be done about the property because it was a continuing fire hazard. Appellee indicated he did not know what would be done.
On September 26, 1969, at approximately 2:00 a.m., a second fire broke out in appellee's house. This fire started on the second floor. Flames coming out of the windows of the appellee's house ignited the eaves of the appellant's home, resulting in almost total destruction of the appellant's home.
Our review of the evidence leaves no doubt that the jury could reasonably have concluded that the appellee engaged in negligent conduct toward the appellant.
"'A possessor of land is subject to liability to others outside of the land for physical harm caused by the disrepair of a structure . . . if the exercise of reasonable care . . . would have made it reasonably safe by repair or otherwise.'" Section 365 of the Restatement of ...