Fry v. Brubaker

• Decision Date: 17 October 1921
• Docket Number: 4-1921
• Citation: 77 Pa.Super. 438
• Parties: Fry v. Brubaker, Appellant
• Court: Pennsylvania Superior Court

77 Pa.Super. 438

Fry v. Brubaker, Appellant

No. 4-1921

Superior Court of Pennsylvania

October 17, 1921

Argued April 25, 1921

Appeal by South Side Trust Company of Pittsburgh, Committee of the person and estate of Amy E. Brubaker, from judgment of C.P Allegheny County-1918, No. 835, in the case of William A. Fry v. Amy E. Brubaker.

Trespass to recover damages for personal injuries. Before Macfarlane J.

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

Verdict for the plaintiff in the sum of $ 500 and judgment thereon. Appeal by committee of the defendant.

Errors assigned were refusal of binding instructions and refusal of defendant's motion for judgment non obstante veredicto.

J. M Shields, and with him Reed, Smith, Shaw & Beal, for appellant. -- The inspector was a mere licensee on the premises and the owner owed him no duty except that of refraining from wilful or affirmative acts of injury Schiffer v. Sauer Co. et al., 238 Pa. 550; Woods v. Lloyd, 16 A. 43.

Joseph R. Conrad, for appellee.

Before Orlady, P. J., Porter, Henderson, Head, Trexler, Keller and Linn, JJ.

OPINION

LINN, J.

Appellant presents two assignments: the first to the refusal of binding instructions; the second to the refusal of judgment n. o. v. The questions of negligence and contributory negligence arising on the evidence were submitted to the jury in a charge of which no complaint is made. The verdict determines that plaintiff's injury was caused by defendant's breach of duty, and as there is evidence to support the verdict, we may not interfere. Our question is whether the law permits recovery.

Defendant's premises in Pittsburgh were used as a tenement house within the provisions of the Act of March 25, 1903, P. L. 54. Section 1 defines a tenement house as " any house or building or portion thereof, which is: (a) intended or designated to be occupied, or (b) leased for occupation, or (c) actually occupied, as a home or residence for three or more families, living in separate apartments, and doing their cooking upon the premises." Section 9 provides: " Every tenement house, and every part thereof, shall be kept in good repair, and shall be clean and free from any accumulations of dirt, filth or garbage, or other matter, in or on the same, or in the yards, courts, passages, areas or alleys connected with or belonging to the same." Section 13 provides: " The Bureau of Health of such cities shall employ one or more special tenement-house inspectors, whose duty it shall be to regularly inspect the tenement houses within the purview of this act, and to see that the requirements therefor are enforced." Plaintiff was such inspector. Complaint was made to the bureau that defendant's tenement house was unsanitary and plaintiff was directed to make the necessary inspection. That required him to go into the cellar. He started down by the stairway provided for the purpose, and while descending, the steps gave way and dropped him to the bottom. He sued to recover for the injury so sustained. There was abundant evidence not only to justify...