Robert S. Lucarini, Philadelphia, for appellants.
Joseph W. Fullem, Jr., Philadelphia, for appellee, Eastern Elevator Co.
Harry A. Short, Jr., Philadelphia, for appellee, Bituminous Cas. Co.
No appearance entered nor brief submitted for appellee, Roberts Delicatessen.
Watkins, President Judge, and Jacobs, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration of this case.
[ 254 Pa. Super. Page 395]
This action arises out of injuries suffered by James Williams (hereinafter, Williams) as the result of an elevator accident. The accident occurred on December 1, 1971, on the premises of Jeanne Roberts, trading as Roberts Delicatessen, (hereinafter, Roberts) at 205 South 18th Street, Philadelphia. Williams, a 17 year old minor, was employed by Roberts as a kitchen helper.
Suit was instituted on behalf of Williams by his parent and natural guardian, Jo Ann Williams (hereinafter, appellant), and in her own right, against Eastern Elevator Company (hereinafter, Eastern) and Bituminous Casualty Company (hereinafter, Bituminous), appellees herein. Roberts was joined as an additional defendant.
Eastern was employed by Roberts to service and maintain the elevator and to inspect it on a bi-monthly basis. Bituminous performed semiannual inspections on the elevator for Roberts for the purpose of determining compliance with the state elevator code, this in lieu of inspections by a state inspector. It had no responsibility for servicing or maintaining the elevator.
The case was tried before the Honorable Edward J. Blake and a jury from October 22 to October 29, 1975. On the latter date a non-suit was entered in favor of all defendants (appellees herein). A motion to take off the non-suit was denied by the court en banc by order dated September 29, 1976. It is from that order that this appeal was taken.
The elevator on which the accident occurred was a freight elevator, sometimes described in the testimony as a hoist, which traveled between the basement and third floors of the building occupied by Roberts Delicatessen. The elevator was a wooden structure at least 40 years old, consisting
[ 254 Pa. Super. Page 396]
of a floor, three walls and a top. The fourth side of the elevator, the front, was completely open. There was no car gate, although there was a gate affixed to each floor of the building which opened or closed vertically by lifting or lowering it. The elevator was operated by means of two cables which ran down the right-hand side of the car as one faced forward from the inside. An operator pulled one cable to start the elevator upward and the other to start it downward. The car ran on wood guide rails on each side of the car.
The elevator entrance on the first floor was in the form of a brick archway which was slightly more than 5 feet wide and approximately 8 feet in height (94 1/2 inches) at the center of the arch. There was a protecting landing gate across the width of the archway (which was raised and lowered vertically). When closed, the gate rose 5 feet, 6 inches from the floor, leaving completely open to the elevator and unenclosed the archway space above the gate and below the top of the arch, a width of approximately 5 feet at the top of the gate and a height of 28 1/2 inches at the center of the arch. There was a clearance ...