No. 129 April Term, 1977, Appeal from the Judgment entered on September 22, 1976 of the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division, at No. 372 October Term, 1972 - In Trespass.
William A. Pietragallo, Pittsburgh, with him Donald W. Bebenek, Pittsburgh, for appellants.
Clyde P. Bailey, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. Spaeth, J., filed a concurring and dissenting opinion, in which Hoffman, J., joined. Van der Voort, J., did not participate in the consideration or decision of this case.
[ 251 Pa. Super. Page 85]
This appeal arises from the lower court's denial of appellants' motion for judgment non obstante veredicto or alternatively, a new trial. We hold that the lower court erred in not entering a judgment n. o. v. in favor of the appellants and, therefore, reverse.
At trial the appellee established that on July 16, 1970, she and a friend, one Janet Glanville, attended opening night at Three Rivers Stadium in Pittsburgh, Pennsylvania. The appellee was a seasoned baseball observer, having attended baseball games at Forbes Field, the old home field of the Pittsburgh Pirates, since she was a child. Both ladies arrived at the stadium at approximately 6:00 p. m., two hours before the scheduled start of the game. They testified that they arrived at such an early time at the behest of the management of Three Rivers who had invited the public to come early in order to inspect the new stadium and view the inaugural ceremonies that were scheduled to precede the game. They entered through Gate A and, after talking to an usher, proceeded to their right, under a gate which had been raised to permit free pedestrian passage, to an area of the inner concourse*fn1 from which they could view the new facility from behind a four foot wall. The appellee and her friend stopped at a point that overlooked the field from above the Pirate bull pen area and immediately within right field foul territory. From behind that four foot wall the appellee was able to see most of the field, most of the seats, the scoreboard, and some players on the field. After approximately two minutes the appellee and friend decided to purchase something to eat. As they turned away from the wall the appellee heard someone yell "Watch!" and she was then struck on the left eye by a baseball. The baseball had been hit by Al Oliver, a Pittsburgh Pirate, who was standing in the batters' cage at home plate taking batting practice.
[ 251 Pa. Super. Page 86]
Oliver had apparently hit one of the pitched balls into right field. The fly ball, however, curved right into the foul area at the last moment and travelled over the wall into the area where the appellee was standing. The appellee testified that she did not see the baseball at any time.
At the close of the plaintiff's case the appellants moved for a directed verdict and a compulsory non-suit on the ground that no negligence on the part of the appellants had been shown and, secondly, on the basis that the appellee had assumed the risk of incurring such injuries.*fn2 The trial judge, while agreeing that no negligence on the part of the appellants had been shown,*fn3 denied the motion for directed verdict or non-suit solely on the basis of Iervolino v. Pittsburgh Athletic Co., 212 Pa. Super. 330, 243 A.2d 490 (1968). The appellants presented no evidence and rested. The case was then submitted to the jury which returned a verdict against both appellants in the amount of $125,000.00. The trial judge subsequently refused appellants' motion for judgment n. o. v. and for a new trial for the same reason.
In Iervolino the wife-appellee was hit by a baseball which travelled into the foul area along the first base line during the regular course of the ball game. Our Court held that, as a matter of law, Mrs. Iervolino failed to satisfy her burden of proving by a fair preponderance of the evidence that the Pittsburgh Athletic Co. deviated from the ordinary standards with respect to methods and appliances employed in the business. Consequently, we held that absent such proof the issue of negligence was not for the jury and it was thus error for the lower court to submit the case to the jury. It was on that basis that judgment was entered in favor of the Pittsburgh Athletic Company. Judge Montgomery however, went on to discuss the doctrine of assumption of risk as an additional reason for entering judgment for Pittsburgh Athletic Club. In doing so, he stated that:
[ 251 Pa. Super. Page 87]
Obviously a spectator is not expected to follow intently balls that are thrown or batted outside the regular play of the game when his attention is fixed on the ball in regular play or when the game is not in progress. Therefore, he cannot be held to assume the risk of being hit by balls being used outside the regular play. In such cases the issue of negligence and contributory negligence is generally ...