Crotty v. Reading Industries, Inc.
| Decision Date | 22 September 1975 |
| Citation | 345 A.2d 259,237 Pa.Super. 1 |
| Parties | J. Edward CROTTY, Appellant, v. READING INDUSTRIES, INC. |
| Court | Pennsylvania Superior Court |
Stephen W. Graffam, Pittsburgh, for appellant.
Stevens & Lee, Richard A. Bausher, Reading, for appellee.
Before WATKINS, President Judge, and JACOBS HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
The appellant, Edward Crotty, was injured in an industrial accident while working as an independent contractor on the premises of the appellee, Reading Industries, Inc. (hereinafter Reading). The appellant filed an action in trespass against Reading contending that the negligence of its agent or employee in starting an industrial machine on which the appellant was working, without first ascertaining that the machine could be started safely, was the proximate cause of appellant's injuries. [1] Upon trial of the cause a jury returned a verdict in favor of Reading Industries and against the appellant. Appellant moved for judgment n.o.v. or a new trial both of which were denied by the lower court. We reverse and grant a new trial.
The facts surrounding this unfortunate injury may be summarized briefly. The appellant was employed by Aetna Standard Engineering Company (hereinafter Aetna) as an engineer whose duties included the providing of technical assistance in field installation of equipment purchased from Aetna. At the time of the accident he was engaged in such a capacity at a plant being constructed by Reading which had purchased from Aetna four large industrial machines used in the production of copper tubing. The appellant was totally familiar with the machines being installed and had provided technical assistance in their installation at this Reading factory on four separate occasions, totalling in all some eight working weeks.
The particular machine on which the appellant was injured utilized a large carousel-type conveyor system which fed material into the machine. In order to make adjustments to the machine, which was not yet in operation, it was necessary for the appellant to step into this carousel system. The evidence reveals that on his way to the machine the appellant passed its control panel and pushed the 'stop' button which shut off the power to the carousel system. The appellant was aware that there were two additional power switches, one a 'knife-type' switch located on the back of the control panel which controlled power to the carousel system, and another some 160--170 feet away which was the main power switch for the entire machine. Nevertheless, he only used the 'stop' button on the control panel. The evidence reveals that the appellant was aware that the carousel system could be started after the stop button had been pushed merely by pressing two buttons one labeled 'on', the other 'index.'
While the appellant was engaged in making adjustments to the machine an employee of Reading, unaware that the appellant was standing on the carousel system a bare seven feet away, pushed the two buttons and set the system in motion. The appellant, unable to vault free of the machine, was carried into its midst sustaining serious injuries.
The issue presented in this appeal is whether the lower court erred in refusing to charge the jury on the duty owed by a possessor of land to a business visitor. The court below charged the jury only in general negligence terms [2] omitting completely any discussion of duty. The appellant contends that his points for charge which were submitted, denied, and properly preserved for appellate review, represent accurate statements of the law regarding the duty owed by a possessor of land to a business visitor, and that the court committed reversible error in denying them.
It is axiomatic that in reviewing the adequacy of a charge we must review the charge as a whole taken in its entirety. Commonwealth v. Rodgers, 459 Pa. 129, 327 A.2d 118 (1974); Commonwealth v. Fell, 453 Pa. 531, 309 A.2d 417 (1973). In the instant case, a complete review of the charge reveals that the trial court instructed the jury on the general principles of negligence, [3] proximate cause and contributory negligence but not on the duty of care owed by a possessor of land to a business visitor. 'The primary duty of a trial judge in charging a jury is to clarify the issues so that the jury may comprehend the questions they are to decide.' Archer v. Pa. R.R. Co., 166 Pa.Super. 538, 541, 72 A.2d 609, 611 (1950); See De Reeder v. Travelers Ins. Co., 329 Pa. 328, 198 A. 45 (1938). The instructions must give the jury a reasonable guide for the determination of the question of the defendant's alleged negligence, Faulkner v. Delph Spinning Co., 245 Pa. 40, 91 A. 607 (1914) and on the degree of care required of the defendant. Archer v. Pa. R.R. Co., supra. 'The jury (can not) determine whether the defendant (is) guilty of negligence without knowing the degree of care required of the defendant . . ..' Kelchner Nanticoke Borough, 209 Pa. 412, 418, 58 A. 851, 853 (1904).
It is important to note, however, that in the case at bar the appellant did not object to the court's failure to charge on the aspect of duty. His specific objections were to the court's refusal of his submitted points for charge. Therefore, we must examine the submitted points to determine whether they represent accurate and applicable statements of the law. If they do not, the court was correct in refusing them and any omissions by the court with respect to the aspect of duty have been waived. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).
Appellant's first requested point for charge states:
'(a) business visitor is a person who is invited or permitted to enter or remain on land in possession of another for a purpose directly or indirectly connected with the business dealings between them.'
It is difficult to dispute this requested point. First stated in the Restatement of Torts § 332 (1938), it was quoted in Kimble v. Mackintosh Hemphill Co., 359 Pa. 461, 470, 59 A.2d 68, 72 (1948) where the Court found a railroad brakeman shifting railroad cars on land leased to the defendant to be a business visitor. See Argo v. Goodstein, 438 Pa. 468, 265 A.2d 783 (1970) (door-to-door peddler is business visitor). The requested point is substantially identical with the Restatement (Second) of Torts § 332(3) (1965), and independent contractors doing work on the defendant's premises clearly qualify as business visitors whether one employs an economic benefit theory or an invitation theory in defining the business visitor. See Palenscar v. Michael J. Bobb, Inc., 439 Pa. 101, 266 A.2d 478 (1970); Argo v. Goodstein, supra; Darrah v. Jones & Laughlin Steel Corp., 397 Pa. 334, 155 A.2d 201 (1959); Miller v. Hickey, 368 Pa. 317, 81 A.2d 910 (1951); Starke v. Long, 221 Pa.Super. 338, 292 A.2d 440 (1972); See also W. Prosser, The Law of Torts § 61 (1971).
Appellant's second and third requested points which were also refused state:
'2. As a business visitor, the plaintiff had the right to expect they (sic) would not be injured as a result of affirmative negligence on the part of the defendant.
These two requested points clearly engage the central issue--the defendant's duty towards its business visitor. Each is a correct, [4] if isolated, statement of the law and we do not find either misleading.
The duty of a possessor of land towards a third person entering the land has been historically measured by the status of the entrant at the time of the accident. Resulting from a mixture of a property law tracing its heritage to feudalism with the relatively recent development of the law of negligence, the limited liability of a possessor of land depending upon the status of the entrant remains in the majority of jurisdictions a viable concept. See, e.g., Annot., Modern Status of Rules Conditioning Landowner's Liability Upon Status of Injured Party As Invitee, Licensee, or Trespasser, 32 A.L.R.3d 508 (1970); 2 F. Harper & F. James, The Law of Torts, §§ 27.1--.21 (1956). [5] The landowner's duty of protection toward a business visitor is the highest duty owed to any entrant upon the land. The rule as stated in the early English case of Indermaur v. Dames, L.R. 1 C.P. 274, 35 L.J.C.P. 184, Aff'd, L.R. 2 C.P. 311, 36 L.J.C.P. 181 (1866) places the possessor of land under an affirmative duty to protect the business visitor not only against dangers of which he knows but also against those which with reasonable care he might discover. The occupier of the premises ordinarily owes the business visitor 'not only the duty not to injure him by unreasonably dangerous conduct while he is upon the premises, but also the affirmative duty to use reasonable care to discover unreasonably dangerous conditions of the premises and either put the premises in a reasonably safe condition for use in a manner consistent with the purpose of the invitation or warn him of the danger.' Annot., supra at 518 (footnotes omitted).
The law in Pennsylvania is not in conflict with these general principles. In Argo v. Goodstein, supra, a case in which a blind business visitor was injured when he fell into an open pit on the defendant's premises, the Court, quoting from the Restatement, said that 'an invitee enters upon an implied representation or assurance that the land has been prepared and made ready and safe for his reception.' Id. 438 Pa. at 476, 265 A.2d at 787. The similarity between this statement and appellant's requested point number 3 supra, cannot be overlooked. In the case at bar the appellant was not injured by a...
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