Curt v. Ziman

• Decision Date: 22 April 1940
• Docket Number: 15-1940
• Citation: 12 A.2d 802,140 Pa.Super. 25
• Parties: Curt, Appellant, v. Ziman
• Court: Pennsylvania Superior Court

12 A.2d 802

140 Pa.Super. 25

Curt, Appellant, v. Ziman

No. 15-1940

Superior Court of Pennsylvania

April 22, 1940

Argued March 5, 1940.

Appeal from judgment of C. P. Lackawanna Co., March T., 1937, No 560, in case of Joseph J. Curt v. Herman Ziman, trading as Ziman Brothers.

Trespass for personal injuries. Before Hoban, J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff in sum of $ 1,500. Judgment entered for defendant n. o. v. Plaintiff appealed.

Error assigned, among others, was judgment n. o. v.

Judgment affirmed.

James K. Peck, with him Ralph W. Rymer, for appellant.

Walter W. Harris, of O'Malley, Hill, Harris & Harris, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker Rhodes and Hirt, JJ.

OPINION

Cunningham, J.

Plaintiff brought this action to recover for personal injuries sustained as a result of placing his hand against a circular saw in defendant's ice-cutting machine. He obtained a verdict for $ 1500 but thereafter the lower court entered judgment n. o. v. for the defendant, upon the ground of absence of proof of defendant's negligence and for the further reason that, even if defendant's negligence be assumed, plaintiff had been guilty of contributory negligence as a matter of law.

In disposing of this appeal by the plaintiff from that judgment it is our duty to read the record in the light most advantageous to him, resolving every conflict in the testimony in his favor and giving him the benefit of every inference fairly deducible from the evidence when so read.

Plaintiff's version of the circumstances under which his injuries were received may be thus outlined: He went to defendant's place of business to sell him machine oil and collect a bill. On arrival he was told by the defendant, with whom he had previously dealt and who was engaged in the ice business, that if he wanted to talk he would have to come up on defendant's platform. Plaintiff thereupon followed the defendant along a narrow platform and into a shack at the north end thereof. On entering the shack, the defendant commenced operating an ice-cutting machine.

Plaintiff testified the machine resembled a table made of plain cast iron, the top of which was about four feet from the floor. It was about three feet wide by three and one-half feet long, and was supported by four legs. In the center of the top plaintiff says he saw a hopper. The machine was rectangular in shape, but on the north end there was a "scallop" or apron extending out a few inches from the machine. The defendant stood at the south end of the machine in order to operate it. On its north end was a chute through which "snow" (actually small particles of ice chipped off by the saws) was expelled from the machine. This chute was about eight inches wide, and emptied into a lard bucket about twenty inches in height.

Plaintiff stood some five or six inches from the northeast corner of the machine watching its operation. He reached over with his right hand and took some of the snow off the lower edge of the chute, which he exhibited to the defendant. After having reached down a second time, plaintiff said: "I'm going to make a snowball." Defendant replied: "Go ahead."

Relative to the injury, plaintiff testified: "Well, I didn't have enough snow to make a good snowball and I reached down the third time and took a little more off and I thought I felt something tick me, just like hitting your nose with a pencil." Upon withdrawing his hand, plaintiff found it had been severely injured by coming in contact with the saws. He also testified he had reached into the machine a distance of five or six inches.

Referring to his three efforts to get enough snow to make a ball, plaintiff said: ".... I took a kind of swipe, like you would take a swipe off the top of a wall or board, I took a little off the bottom [of the chute]. The second time I went a little higher and the third time I went a little higher than that .... to get a little more snow."

Plaintiff testified he saw no guards on the machine and was not warned in any way by the defendant. With respect to the saws he said: "They were below the table, and out of sight; even if you leaned like that you couldn't see. You would have to go way down like this to see them, and I didn't any more than bend my hips."

On cross-examination plaintiff said he "couldn't see up under that chute" from where he stood. His testimony continued: "Q. Now, Mr. Curt, you knew that some knives or saws or sharp cutting instruments were cutting that block of ice into cubes, you knew that, didn't you? A. I assumed they were, and I also assumed there would be a guard to protect them."

We therefore have a case in which the plaintiff, a business invitee, was injured as a result of voluntarily putting his hand into the interior of a cutting machine. He knew the purpose of the machine, knew it was in operation, and admitted he did not stoop low enough to see the portion of the machine into which he thrust his hand. He contends he acted as he did because the defendant told him to "go ahead" after he had stated his intention of making a snowball out of the particles of ice expelled by the machine.

As plaintiff, under his testimony, was a business invitee, defendant owed him an affirmative duty to keep his premises in a reasonably safe condition, or to warn him of any dangerous conditions which defendant knew or should have known existed: Vetter v. Great Atlantic & Pacific Tea Co., 322 Pa. 449, 185 A. 613; Markman v. Fred P. Bell Stores Co., 285 Pa. 378, 132 A. 178; Durning v. Hyman, 286 Pa. 376, 133 A. 568; Restatement, Law of Torts, Sec. 343.

But plaintiff was not injured by reason of any defective condition of the premises. The injury was caused by the defendant's machinery, and there is no evidence from which it can be inferred that the machinery would endanger a mere bystander. Only by meddling with it could injury result, and the danger of sticking one's hand into the interior of a cutting machine, while in operation, must be obvious to any reasonable man. The rule is well settled that there is no duty to warn or guard against the obvious. Walker v. Broad and Walnut Corp. et al., 320 Pa. 504, 506, 182 A. 643; Rice v. Kring, 310 Pa. 550, 165 A. 833; Vant v. Roelofs, 217 Pa. 535, 66 A. 749. Hence it cannot be said defendant was under any duty to warn plaintiff of the saws or to put a guard in the machine.

Plaintiff asserts there was such a duty, and in support of this contention cites four cases. In Vetter v. Great Atlantic and Pacific Tea Company, supra, the plaintiff was a business invitee who slipped on a banana peel on a dark stairway. In Murphy v. Bernheim & Sons, Inc., 327 Pa. 285, 194 A. 194, a business invitee, fell down an insufficiently lighted elevator shaft. In Fredericks v. Atlantic Refining Co., 282 Pa. 8, 127 A. 615, the plaintiff was injured as a result of the defective condition of defendant's instrumentality (a gasoline line) coupled with the negligence of its employee. The case of Cathcart v. Sears, Roebuck and Company, 120 Pa.Super. 531, 183 A. 113, involved injuries resulting from a fall on dimly lighted steps of the defendant. Obviously, none of these cases sustains plaintiff's contention as to defendant's duty in the present one, as the facts are not at all analogous.

This case, however, does contain the factor that the defendant told the plaintiff to "go ahead" and make a snowball. Plaintiff argues that this statement, coupled with the fact that defendant knew of plaintiff's prior action in picking up some snow, constituted an invitation to him to put his hand up the chute. It may be...