Horner v. Penn Fruit Co.

• Decision Date: 19 July 1951
• Citation: 169 Pa.Super. 473,82 A.2d 313
• Parties: HORNER v. PENN FRUIT CO.
• Court: Pennsylvania Superior Court

82 A.2d 313

169 Pa.Super. 473

HORNER v. PENN FRUIT CO.

Superior Court of Pennsylvania.

July 19, 1951

Action by Richard Horner against Penn Fruit Co., in trespass for injuries sustained by plaintiff when he was knocked down by small express wagon pulled by small boy on sidewalk in front of defendant's store. The Court of Common Pleas No. 3, of the County of Philadelphia, June Term, 1948, No. 5024 Levinthal, J., entered judgment for plaintiff, and defendant appealed. The Superior Court, October Term, 1951, No. 11 Gunther, J., held that owner of grocery store who knew of habit of small boys with wagons to congregate in front of store for purpose of hauling customers' packages but who made no persistent effort to control such activities in orderly fashion had negligently allowed condition which involved probability of accident to continue and was, in absence of contributory negligence of customer, liable for injuries to customer.

Judgment affirmed.

H. T. Reath, J. B. Martin, Duane, Morris &amp Heckscher, Philadelphia, for appellant.

Edward M. GoldsBorough, Joseph G. Feldman, Philadelphia, for appellee.

Before RHODES, P. J., and HIRT, RENO, ROSS, ARNOLD and GUNTHER, JJ., concurring.

GUNTHER Judge.

Richard Horner, appellee, instituted this action in trespass against the Penn Fruit Co., appellant, to recover damages for personal injuries sustained by appellee when he fell over a small express wagon on appellant's sidewalk. A verdict was rendered in favor of the appellee in the amount of $1,200. Motions for judgment n. o. v., and for a new trial, were filed, and this appeal is from the refusal of the court below to grant these motions, and the entry of the judgment on the verdict.

Appellant operates a food market at 5218 Market Street, Philadelphia. A number of youths with small express wagons usually congregate on appellant's sidewalk and solicit its customers to hire them to carry their packages in these wagons. Appellee was well aware of the presence of these boys on appellant's sidewalk, having made purchases at appellant's market on prior occasions. On June 19, 1948, as the appellee emerged from the appellant's market onto the sidewalk, one of these youths, endeavoring to solicit the appellee, caused his wagon to collide into the appellee who fell over it head-first and landed on his left elbow, thereby fracturing it.

In arguing the motion for judgment n. o. v., the appellant contends that the boys on the sidewalk were neither servants agents, nor employees of the appellant, that appellant had no control over the actions of the boys at any time, nor could it refuse them permission to use the public sidewalk in front of its store, that being the function of the municipal authorities. The boys who were from eight to fourteen years of age solicited persons coming from the store, offering to carry their packages. Appellant admitted that the boys' action around the store made it difficult for customers to get in and out of the store, and on one occasion the police were called and the boys were limited in their area of solicitation to the curbstone. Appellant made some effort to control the actions of the boys but failed. Although the store authorities knew that the boys were continually going beyond the curbstone with their wagons to solicit their customers, there was not persistent effort to control the activities of the boys within limits and orderly fashion. Appellee's case comes within the rule of law in Section 318 of the Restatement of Torts in that appellant permitted this condition to continue, a...