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KENNETH LOVE v. HARRISBURG COCA-COLA BOTTLING COMPANY (12/21/79)

filed: December 21, 1979.

KENNETH LOVE
v.
HARRISBURG COCA-COLA BOTTLING COMPANY, INC., APPELLANT



No. 1622 October Term, 1978, Appeal from the Judgment of the Court of Common Pleas of Cumberland County, Civil Division -- Law, No. 3184 Civil 1976.

COUNSEL

William D. Boswell, Harrisburg, for appellant.

Edgar B. Bayley, Camp Hill, submitted a brief late on behalf of appellee.

Van der Voort, Wieand and Lipez, JJ.

Author: Lipez

[ 273 Pa. Super. Page 212]

In this personal injury action, the jury returned a $25,000 verdict for plaintiff Kenneth Love (Love) against defendant Harrisburg Coca-Cola Bottling Company, Inc. (Coca-Cola). Coca-Cola's motions for judgment n. o. v. and a new trial were denied, and a $25,000 judgment was entered for Love. Coca-Cola appeals from that judgment.

Coca-Cola claims it was entitled to judgment n. o. v. because the evidence was insufficient as a matter of law to support jury findings that: (1) Love's injury was caused by the negligence of Coca-Cola; and (2) Love was not contributorily

[ 273 Pa. Super. Page 213]

    negligent. The evidence showed that Love was in Coca-Cola's plant as an independent contractor, performing brazing work which required the use of a ladder, supplied by Coca-Cola, to reach the area of the machine to be brazed. At first Love steadied the ladder while his associate, Mr. Humphries, did the brazing. Then Humphries came down and held the ladder for Love. Humphries was called away to work on another machine which was smoking, but Love continued to work on the ladder, until it slipped out beneath him and he was injured in the ensuing fall.

Humphries returned and found Love lying on the floor in water. Although Love was aware that Coca-Cola frequently had its clean-up crews going through the plant, and he had seen a clean-up crew on the other side of the machine when he ascended the ladder, the crew was not placing any water or cleaning solution in his work area at that time. Love testified there was no water on the floor when he ascended the ladder, and Humphries testified there was no water on the floor when he left the area to go to the other machine. Although the floor under the ladder sloped somewhat, Love testified that at the time he fell, the ladder was firmly braced against the machine, and he was standing still, with his weight evenly distributed.

"It is well settled that a judgment n. o. v. will be entered only in a clear case, and that any doubts will be resolved in favor of the verdict: [citing cases]." Stewart v. Chernicky, 439 Pa. 43, 53, 266 A.2d 259, 265 (1970). Applying this standard, we certainly cannot say that the evidence was clear that Love's fall did not result from Coca-Cola's negligence in allowing water from a clean-up crew operation to seep beneath the ladder and cause it to slip out from the machine. Neither can we say that the mere fact that Love was aware there was a clean-up crew in the area made Love's contributory negligence so clear as to justify taking this question from the jury. Denial of the motion for judgment n. o. v. was accordingly proper.

[ 273 Pa. Super. Page 214]

Coca-Cola also contends the court below erred in refusing its motion for continuance made on the morning of trial on the ground that Mr. Hager, a witness who was to fly in from North Carolina, had to stay in North Carolina indefinitely to deal with a sudden labor-management dispute at his employer's plant. "When a case is called for trial, the grant or refusal of a request for a continuance is within the discretion of the trial court and only where such discretion has been abused will the refusal of a continuance be reversed." Phoenix Mutual Life Insurance Company v. Radcliffe on the Delaware, Inc., 439 Pa. 159, 165, 266 A.2d 698, 701 (1970). Coca-Cola did not bring specifically to the trial judge's attention at the time of the motion what Mr. Hager's testimony would be. Even now Coca-Cola only vaguely states in its brief, "Mr. Hager is considered by the Appellant a principal fact witness for the defense in that he observed the time sequence of the area floor cleaning as such relates to Mr. Love's use of the ladder, a material factual element of this case." As the court below observed, Coca-Cola had already stated in an answer to one of Love's interrogatories that it had no eyewitness. Furthermore, whatever Mr. Hager's testimony was going to be, the trial judge correctly pointed out that Coca-Cola knew long in advance of trial that Mr. Hager had moved to North Carolina, and yet made no effort ...


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