Frisch v. Texas Co.

• Decision Date: 05 January 1950
• Parties: FRISCH v. TEXAS CO. et al.
• Court: Pennsylvania Supreme Court

70 A.2d 290

363 Pa. 619

FRISCH v. TEXAS CO. et al.

Supreme Court of Pennsylvania

January 5, 1950

Argued November 16, 1949

Appeal, No. 152, Jan. T., 1949, from judgment of Court of Common Pleas No. 1 of Philadelphia County, March T., 1947 No. 4831, in case of John J. Frisch v. The Texas Company et al. Judgment affirmed.

Trespass for personal injuries. Before KUN, J.

Verdict directed for all defendants and judgment entered thereon. Plaintiff appealed.

Judgment affirmed.

Leonard Turner, for appellant.

Richard A. Smith, for Texas Company, appellee.

Glenn A. Troutman, with him McWilliams, Wagoner &amp Troutman, for Samuel C. Ciaverelli, appellee.

George H. Detweiler, with him Robert A. Detweiler and A. Walling Levin, for Ruth G. Kahn et al., additional defendants, appellees.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.

OPINION

MR. JUSTICE DREW

This suit in trespass was brought by plaintiff, John J. Frisch, to recover damages for personal injuries sustained by him when he slipped, for some unexplained reason, on the public sidewalk and fell into a nearby grease pit located on property owned by Ruth G. and Julia Kahn. These owners had leased the real estate, upon which was constructed a gasoline service station, with the usual equipment, including a grease pit, to The Texas Company. That company in turn sublet the property to Samuel C. Ciaverelli, who was operating the station at the time the accident occurred. Suit was instituted against defendants, The Texas Company and Ciaverelli, and the Kahns were brought in as additional defendants. At the conclusion of plaintiff's case, the learned trial judge directed a verdict in favor of defendants and additional defendants. A motion for a new trial having been refused by the court en banc and judgment having been entered on the verdict, plaintiff took this appeal.

Viewing the testimony in the light most favorable to plaintiff, the following facts appear. The gasoline service station was located on the northeast corner of Hutchinson Street and Rising Sun Avenue in the City of Philadelphia. The grease pit with which we are here concerned, was located entirely within the limits of the service station property, three or more feet from the 15-foot sidewalk of Rising Sun Avenue, it was similar to those generally used at gas stations in order that automobiles can be driven over them and greased from beneath. At about 9:30 o'clock on the evening of December 14, 1946, plaintiff, 51 years of age, was walking on the sidewalk of Rising Sun Avenue close to the line of the abutting service station property. When he reached a point on the sidewalk opposite the grease pit, he slipped or lost his balance (the reason for which plaintiff could not explain), and fell into the grease pit and sustained personal injuries.

Plaintiff argues that in directing a verdict for defendants the court below erred because defendants were negligent in failing to install a covering or other protection over the pit. Defendants contend, and the court below concluded as a matter of law, that the proximate cause of plaintiff's injury was not any breach of duty on the part of defendants, but was attributable to his own involuntary act in slipping on the sidewalk.

The sole issue raised is whether the uncovered grease pit was the proximate cause of plaintiff's injury. In Rugart v. Keebler-Weyl Baking Co., 277 Pa. 408, 413, 121 A. 198, we said: "Without attempting to define formally what is meant by the term 'proximate cause', we may safely affirm, in the case of a tort, that, in order to fall within this category, an act must be such as will probably result in harm, and that a cause is regarded in law as remote if an injury complained of was an unlikely or improbable consequence thereof." That question, although normally for the jury, becomes one of law when the undisputed facts make it clear that the negligence alleged did not cause the injury: Irwin Sav. & Tr. Co. v. Penna. R.R. Co., 349 Pa. 278, 37 A.2d 432; McGrath v. E.G. Budd Mfg. Co., 348 Pa. 619, 36 A.2d 303; Joseph v. United Workers Assn., 343 Pa. 636, 23 A.2d 470; Leoni v. Reinhard, 327 Pa. 391, 194 A. 490.

When these principles are applied to the facts of the instant case, it is clear that the learned trial judge correctly held that the grease pit was not the proximate cause of plaintiff's injuries. He did not fall into the pit because of any inadvertent step he made toward it, or because he walked into it. Rather, he fell into it because, as he stated, "I slipped, lost my balance, tripped", for some unexplained reason, while walking on the public sidewalk. It would have been impossible for a reasonable and prudent man to have anticipated and foreseen that a person, exercising due diligence, would accidently slip while walking on the adjacent sidewalk and be precipitated into this pit. The court below very properly said: "The presence of the defendant's grease pit had no connection with that slipping or tripping... Had the opening been covered at the time, the plaintiff would have landed on the cover instead of in the pit, and whether he would have been hurt more or less is pure conjecture... The fact that the grease pit was on the defendant's premises was not the proximate cause of the plaintiff's injury."

In Quinn v. Philadelphia, 224 Pa. 176, 73 A. 318, we held that where injuries were sustained by a boy who tripped over a projecting hinge of a cellar door and fell into an uncovered areaway near the house line the City could not...