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KENNETH SEEWAGEN v. HANS VANDERKLUET & PRISCILLA VANDERKLUET (02/06/85)

filed: February 6, 1985.

KENNETH SEEWAGEN
v.
HANS VANDERKLUET & PRISCILLA VANDERKLUET, INDIVIDUALLY AND T/A RED LION INN, APPELLANTS. KENNETH SEEWAGEN V. VANDERKLUET, INC., TRADING AS RED LION INN, APPELLANTS



No. 537 Philadelphia, 1983, Appeal from the Order of February 7, 1983 in the Court of Common Pleas of Berks County, Civil Division, No. 3 February Cirillo, Beck and Cercone, JJ.

Author: Cercone

[ 338 Pa. Super. Page 538]

Kenneth Seewagen ("plaintiff") filed actions in trespass against Hans Vanderkluet and Priscilla Vanderkluet, individually and trading as Red Lion Inn, and against Vanderkluet, Inc., trading as Red Lion Inn ("defendants" or "appellants"). Plaintiff claimed that he sustained personal injury involving the loss of an eye caused by defendants' negligence while plaintiff was business invitee on defendants' premises. The actions were tried under the Comparative Negligence Act of July 9, 1976, as amended, 42 Pa.C.S.A. § 7102.*fn1 In response to special interrogatories, the jury

[ 338 Pa. Super. Page 539]

    found defendants 51 percent negligent and the plaintiff 49 percent negligent. The trial court accordingly molded the verdict for plaintiff in the amount of $27,277.86, which included damages for delay.

Defendants filed motions for judgment n.o.v. and for a new trial. The lower court denied both of defendants' motions and this appeal followed. For the reasons following, we affirm.

The issues on appeal are (1) whether the lower court erred in refusing appellants' motion for judgment n.o.v.; (2) whether the appellants' are entitled to a new trial because the verdict is against the weight of the evidence; and, (3) whether the trial judge erred in refusing the appellant's point for Charge No. 3.

The facts necessary for this opinion are fully set forth herein.

On appeal from the refusal of the trial court to enter judgment n.o.v. for the defendant, the sole duty of the appellate court is to decide whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner, the appellee here, the benefit of every reasonable inference reasonably to be drawn from the evidence. McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 450 A.2d 991, 993 (1982) (citations omitted). All unfavorable testimony and inferences must be rejected. Id.

Appellants argue that, as a matter of law, plaintiff failed to submit evidence sufficient to prove the alleged negligence,*fn2 that is that defendants (1) failed to provide plaintiff

[ 338 Pa. Super. Page 540]

    with safety goggles; (2) failed to furnish penetrating oil; and (3) failed to inspect the premises. Appellants also contend that, as a matter of law, plaintiff's comparative negligence exceeded that of the appellants'.

The essence of appellants' argument is that plaintiff should have realized the risk involved after inspecting the situation himself and requested safety goggles and penetrating oil. Since plaintiff admittedly did not do so, appellants' argue, he has failed to prove their negligence. Further, appellants argue that had they inspected, all they could have seen was that which the plaintiff himself saw. By arguing thus, appellants misconstrue plaintiff's burden of proof. Plaintiff was only required to set forth facts sufficient to establish by a fair preponderance of the evidence that appellants had not met their duty of care as set forth in Section 343. It then comes within the province of the jury to determine the reasonableness of each party's actions and to reconcile conflicting statements. The plaintiff does not have the burden of disproving his own contributory negligence as appellant's would suggest. To impose such a burden would defeat the purpose of Pennsylvania's Comparative Negligence Statute, 42 Pa.C.S.A. § 7102 ("statute").

The plaintiff testified that he had been employed by appellants to assist in painting, cleaning and refurbishing their newly-acquired bar and restaurant premise. While performing an assigned chore of removing an old sign which was attached to an outdoor post and secured by a metal clamp with rusted screws, a sliver of metal snapped off and struck plaintiff's eye. He further testified that appellants were present and in charge of the renovation, ...


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