John v. Reick-McJunkin Dairy Co.

• Decision Date: 01 December 1924
• Docket Number: 114
• Parties: John v. Reick-McJunkin Dairy Co., Appellant
• Court: Pennsylvania Supreme Court

127 A. 143

281 Pa. 543

John v. Reick-McJunkin Dairy Co., Appellant

No. 114

Supreme Court of Pennsylvania

December 1, 1924

Argued October 6, 1924

Appeal, No. 114, Oct. T., 1924, by defendant, from judgment of C.P. Lawrence Co., Sept. T., 1922, No. 20, on verdict for plaintiff, in case of David H. John v. Reick-McJunkin Dairy Co. Affirmed.

Trespass for personal injuries. Before EMERY, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $7,200. Defendant appealed.

Errors assigned were various rulings and instructions, quoting record.

We find no error in the record and the judgment is affirmed.

J Norman Martin, of Martin & Martin, with him William J Moffatt and Harry J. Nesbitt, for appellant. -- The facts warranted binding instructions for defendant: Schiffer v. Sauer Co., 238 Pa. 550; Gillis v. R.R., 59 Pa. 129; Hagan v. Steel Co., 240 Pa. 222; Thompson v. R.R., 218 Pa. 444.

Defendant had a right to object at the trial to the competency or relevancy of depositions taken ex parte plaintiff.

James A. Chambers, for appellee, cited: Kay v. R.R., 65 Pa. 269; Henderson v. Refining Co., 219 Pa. 384; Millum v. Coal Co., 225 Pa. 214; Costanza v. Coal Co., 276 Pa. 90; Fortunato v. Limestone Co., 278 Pa. 499; Francis v. R.R., 247 Pa. 425; O'Leary v. R.R., 248 Pa. 4; Counizzarri v. Ry., 248 Pa. 474.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE FRAZER:

Plaintiff sued to recover for personal injuries sustained by falling into an unguarded excavation made by defendant across a private way over its property at its place of business. A verdict was returned for plaintiff and motions for judgment for defendant non obstante veredicto and for a new trial were overruled and judgment entered on the verdict. Defendant appealed.

Plaintiff, a resident of the City of New Castle, was employed at defendant's milk depot and ice cream manufactory, in that city. Its property fronts on Beaver Street and extends to Diamond Alley in the rear, the latter being connected with Beaver Street by a drive or passageway over the property, a part of which is covered for a distance of thirty feet by the second story of a building constructed over the way. The day before the accident in question, a ditch had been dug across the driveway on the portion covered by the building. On the day of the accident, plaintiff quit work at 5:30 p.m., but returned to defendant's place of business between eight and nine o'clock that evening on a personal errand. He entered the passageway at Diamond Alley in the rear of the buildings and while proceeding toward the Beaver Street entrance stumbled over the embankment of dirt, thrown out of the excavation, which caused him to fall into the ditch and receive the injuries here sued for. The night was dark and no lights were placed at or near the ditch to warn persons of danger and although plaintiff was familiar with the passageway he was not aware the excavation had been made.

Defendant's contention is that the driveway in question is a private way for the convenience of its customers and employees in carrying on its business, and that it owed no duty to plaintiff, who, it is conceded, had returned to the plant at night on a personal errand in no way connected with his employment and was therefore a trespasser or at most a mere licensee and the only duty owed him by defendant was to refrain from wantonly or maliciously injuring him. From the evidence it appears that the passageway in which plaintiff was injured was used by defendant as a means of entry and exit by wagons, trucks and pedestrians coming to and leaving its depot and manufactory in connection with its business. The evidence further shows the passageway is used with defendant's knowledge and tacit acquiescence by its employees, persons living in the neighborhood and others as a short way from Beaver Street to Diamond Alley, and has been thus used frequently by plaintiff in going to and from the rear doorway of defendant's place of business. Such use was made of it without objection on the part of defendant. Defendant's milk depot is located in the business section of the city and the passageway is always open. There were no signs warning against trespassing nor were there gates or other obstruction at either end of the driveway. This evidence was sufficient to warrant the jury in finding the existence of a permissive way connecting the two streets, especially for the use of defendant's employees, and under such circumstances it became the duty of...