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filed: June 25, 1982.


No. 927 October Term, 1979, No. 948 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 1841 October Term, 1968.


George J. O'Neill, Philadelphia, for appellant.

J. Paul Erwin, Jr., Philadelphia, for appellees.

Hester, Popovich and DiSalle, JJ. DiSalle, J., did not participate in the consideration or decision of this case.

Author: Popovich

[ 304 Pa. Super. Page 441]

This case involves cross-appeals in a trespass action brought by the appellant-Frank McDevitt (McDevitt) for injuries he sustained on the premises of appellee-Terminal Warehouse Co. (Terminal) while in the course of his employment for Scott Brothers, a trucking firm. A jury returned a verdict in favor of McDevitt and against the appellee and Scott Brothers in the amount of $200,000.00. At post-trial, the court en banc granted appellee's and Scott Brothers' motion for a new trial, but denied their motion for judgment

[ 304 Pa. Super. Page 442]

    standards, the following facts, as warranted by the evidence and established by the verdict, appear.

Terminal operated a warehouse complex in the City of Philadelphia, located on 2nd Street and Erie Avenue. A portion of that complex, namely a parking area, was subleased to Scott Brothers for their tractors and trailers. Interestingly enough, the lease agreement made no mention as to which party would be responsible for the maintenance of the premises. A review of the record indicates, however, it was the common and accepted practice that complaints lodged by Scott Brothers' employees with their supervisors, regarding the condition of the parking facilities, would be forwarded to the personnel at Terminal, and they, in turn, would make the needed repairs. It is to be noted that when this maintenance work was performed, Terminal's employees were always used.

With such facts as a backdrop, we recount the circumstances precipitating the instant litigation. McDevitt, an employee for Scott Brothers for about sixteen years, had been assigned to the 2nd Street and Erie Avenue warehouse for some "five, six years" prior to the date of his accident on November 1, 1966. On the date just mentioned, at approximately 8:00 p. m., McDevitt, in his capacity as "helper," was assisting a Scott Brothers' driver (Larry Ballard) park his tractor-trailer between two other "rigs." Since there was no lighting in the area, McDevitt "was looking at the . . . skyline." (N.T. 307) He did this because he "could tell by the silhouette of the outline of the trailer just where it was going, maneuvering, to go back in[to the parking slot]." (N.T. 306 & 307) With appellant standing along the passenger side of the tractor-trailer, the driver angled the trailer portion of the vehicle into position. The driver then stopped and pulled forward in order to align the trailer with the tractor before attempting to back the entire "rig" into the parking space. During this pause, appellant situated himself approximately 12 feet from the front bumper of the tractor, i.e., between the dolly wheels and the tractor wheels, facing the rear of the vehicle. Additionally, because of the

[ 304 Pa. Super. Page 444]

    poor lighting available (which precluded McDevitt from seeing the ground in front of him), appellant placed his right hand on the side of the trailer to guide and to steady himself as he walked with the moving truck -- this made him feel "a little safer with it there" and allowed him to sense when he was getting too close to the trailer. (N.T. 346 & 358) Thereafter, the tractor-trailer traveled a distance of some 15 feet before the appellant "stepped in a hole with [his] right foot" -- the hole was deep enough to encompass his entire foot. (N.T. 312 & 324) The appellant then lost his balance and fell down on his right knee, and that is when he felt his right foot get caught under the back rear wheel of the tractor. McDevitt screamed hysterically, "Stop! Stop! Stop!" Before the driver heard him so as to react and move the vehicle forward, the victim's right foot was crushed, causing permanent injury.

Appellee-Terminal contends that the evidence in this case "compel[s] the conclusion that judgment notwithstanding the verdict should have been granted on the ground that plaintiff[-appellant] was negligent and/or assumed the risk and that, in any event, the evidence was insufficient to take the case to the jury on the issue of Terminal Warehouse's negligence."*fn3 (Appellee's Brief at 6) Counsel for McDevitt, on the other hand, argues that his client "was acting under the 'compelling necessities' of his employment and violated no duty owing to himself or others." (Appellant's Reply Brief at 3)

The legal principles applicable to the present case were recently collected and set forth in McNally v. Liebowitz, 274 Pa. Super. 386, 389, 418 A.2d 460, 461 (1980), reversed on other grounds, 498 Pa. 163, 445 A.2d 716 (1982), wherein we stated:

"Although it is true that these 'darkness' cases necessarily depend largely on individual facts, Dively v. Penn-Pittsburgh Corp., 332 Pa. 65, 2 A.2d 831 (1938), this area of the

[ 304 Pa. Super. Page 445]

    law has been well developed and some general rules have evolved. Thus, in the absence of compelling necessity, it is generally held '"that one who follows an unfamiliar course in the dark or steps into darkened and unfamiliar space, relying upon his sense of touch instead of obtaining and using adequate lighting facilities, and sustains personal injuries, is guilty of contributory negligence as a matter of law."' Just v. Sons of Italy Hall, 240 Pa. Super. 416, 422, 368 A.2d 308, 312 (1976) (emphasis in original), quoting Barth v. Klinck, 360 Pa. 616, 618, 62 A.2d 841, 842 (1949). '[D]arkness is, in itself, a warning to proceed either with extreme caution or not at all.' Barth v. Klinck, supra, 360 Pa. at 618, 62 A.2d at 842; Mogren v. Gadonas, 358 Pa. 507, 511, 58 A.2d 150, 152 (1948). The controlling factors in determining the question whether one was contributorily negligent in proceeding in the darkness are the degree of darkness and the justification for the injured person's presence in the place of danger. Dively v. Penn-Pittsburgh Corp., supra; Just v. Sons of Italy Hall, supra.

The degree of darkness is important in determining if appellant had reason to apprehend the danger. If the area was not totally dark, she may have been reasonably justified in assuming that with appropriate care she could reach the end destination without mishap. In all cases one must use the senses that are available, Bartek v. Grossman, 356 Pa. 522, 52 A.2d 209 (1947), and it is only when a plaintiff uses his sense of sight carefully and reasonably believes that he can 'see his way', but was then deceived by shadows, that the question of his negligence will be for the jury. McKown v. Demmler Properties, Inc., 419 Pa. 475, 214 A.2d 626 (1965); Carns v. Noel, 364 Pa. 77, 70 A.2d 619 (1950); Falen v. Monessen Amusement Co., 363 Pa. 168, 69 A.2d 65 (1949)."

Further, this Court held in Devine v. Hollander, 192 Pa. Super. 642, 648, 161 A.2d 911, 914-915 (1960) that ". . . a person may be declared guilty of contributory negligence when he wanders around in darkness in a place where he has

[ 304 Pa. Super. Page 446]

    no reason to be, such a declaration will not be made if he has a fairly compelling reason to be there and the place is not utterly devoid of light. " (Emphasis added) (Citations omitted)

Applying the governing rules outlined supra, it is clear that the appellant had a "fairly compelling reason" for walking on the parking grounds since he was in the process of performing his job. See Scurco v. Kart, 377 Pa. 435, 105 A.2d 170 (1954) (plaintiff had a "fairly compelling reason" for walking through the hallway since she was bound for her place of employment); see also Draper v. Airco, Inc., 580 F.2d 91, 102-103 & n. 12 (3rd Cir. 1978); Restatement (Second) of Torts, ยง 343A, Comment f, Illustration No. 5. As for a determination as to the degree of darkness, necessarily intertwined therewith is an evaluation of the reasonableness of appellant's actions under the circumstances. Krusinski v. Chioda, 394 Pa. 90, 103, 145 A.2d 681, 687 (1958) ("The criterion of accountability . . . in a negligence case is not what an injured person might have done to avoid mishap, but whether what he did under the circumstances is what a reasonably prudent person would have done."); Jewell v. Beckstine, 255 Pa. Super. 238, 386 A.2d 597 (1978).

In the case sub judice, we have an employee-employer situation; as such:

"In determining the standard of conduct of one who is injured in the performance of his employment, the working conditions and all of the circumstances incident thereto, including his obligation to do his job, must be considered: Stringert v. Lastik Products Co., Inc., 397 Pa. 503, 155 A.2d 625 (1959). If in performing his employment, a workman conforms to the ordinary usage thereof, this is evidence of the exercise of due care and indicates lack of careless conduct: Mutter v. Slaymaker, [404 Pa. 369, 171 A.2d 779 (1961)]. As stated in Van Zandt v. Phila. B. & W. R. R. Co., 248 Pa. 276, at 281, 93 A. 1010, at 1011: 'What is required of the workman is that he exercise care for his safety according to the circumstances. He knows he is occupying a place of great danger, and his

[ 304 Pa. Super. Page 447]

    care must be commensurate with that danger. He is equally cognizant of the fact that he must perform faithfully the services required of him. Both obligations are resting upon him, and each must be met with a due regard to the other.'" Gregorius v. Safeway Steel Scaffolds Co., 409 Pa. 578, 584, 187 A.2d 646, 649 (1963).

Initially, we shall discuss the issue of whether there was sufficient light for appellant to see his way.

On direct examination, appellant responded in the negative when asked if there was any illumination from the 200-watt bulb affixed atop an 8-foot pole situated next to the gas pump, which was 6 to 8 feet at its closest point from the front bumper of the tractor-trailer when it was being parked. In fact, he stated he "could hardly tell . . . when [he] ever seen [sic] it[ ]" operating. (N.T. 324)

Additionally, a number of appellant's co-workers testified to the condition of the lot. For example: Joseph Kleschick, who was working at the loading dock about 100 feet from where the appellant was situated, corroborated appellant's accounting that the light near the gas pump was not working. As to the lighting provided the parking area in general, the witness stated there was no other illumination, except for the glare coming from the lights at the loading area. Next, Joseph Andrew Mooney could state no more than that there was a light bulb at the gas pump, "but whether or not it was on is another story. One day it would be on. The next day it wouldn't be." (N.T. 124) Finally, Herman A. Tinsely, Scott Brothers' dispatcher, opined that the lighting situation on the night of the accident was "[j]ust normal . . . as far as [he] was concerned[;]" in other words, "poor." (N.T. 175)

Neither side takes serious issue with the contention that the surface of the parking lot was in disrepair (e.g., it had bumps, gullies, hills, dips and holes) for some time prior to the incident, and that appellant was aware of such condition. As a result, the real question to be resolved is in regard to appellant's behavior in light of the circumstances confronting him. As Dean Prosser has aptly stated on this subject:

[ 304 Pa. Super. Page 448]

"So far as contributory negligence itself is concerned . . . the reasonableness of the plaintiff's conduct is to be determined by balancing the risk against the value which the law attaches to the advantages which he is seeking." W. Prosser, Handbook of the Law of Torts (4th Ed. 1971) pp. 424-425; see also McKenzie v. Cost Bros., Inc., 487 Pa. 303, 311, 409 A.2d 362, 366 (1979) ("'The standard of due care is such care as a prudent person would exercise under the circumstances of the particular case, and conformity to customary or usual conduct or methods cannot amount to more than a circumstance to be considered together with other circumstances of the case in determining whether due care has been exercised[.]"). A review of appellant's testimony is necessary to ascertain the "reasonableness" of his actions.

We start with appellant's testimony on cross-examination, wherein he was asked:

"Q When you were doing that [-- i.e., looking at the silhouette of the trailer against the sky], ...

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