Kelly v. Northampton County Agricultural Soc.
| Decision Date | 19 March 1926 |
| Docket Number | 95 |
| Citation | 132 A. 832,286 Pa. 97 |
| Parties | Kelly, Appellant, v. Northampton County Agricultural Society |
| Court | Pennsylvania Supreme Court |
Argued February 2, 1926
Appeal, No. 95, Jan. T., 1926, by plaintiff, from judgment of C.P. Northampton Co., April T., 1923, No. 37, for defendant n.o.v., in case of Francis J. Kelly v. Northampton County Agricultural Society. Affirmed.
Trespass for personal injuries. Before STOTZ, J.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff for $3,000. Judgment for defendant n.o.v Plaintiff appealed.
Error assigned was judgment n.o.v., quoting it.
The judgment of the court below is affirmed.
C. F Smith, of Smith & Paff, for appellant. -- We have a clear cut case of defendant company assuming the control of the employee: McGrath v. Sugar Co., 282 Pa. 265. Ackley v. Bradford Township, 32 Pa.Super. 487, is on all fours with the case under consideration and rules the instant case exactly.
Asher Seip, for appellee. -- It cannot be seriously disputed that plaintiff was engaged on a common purpose and enterprise with the driver of the truck, and that he was bound to exercise vigilance, and, if necessary, warn the driver of danger: Dunlap v. P.R.T., 248 Pa. 130; Laudenberger v. Transit Co., 261 Pa. 288; Bucklin v. Davidson, 155 Pa. 362; Baker v. Gas Co., 157 Pa. 593.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Francis Kelly brought an action in trespass to recover damages sustained on September 26, 1922, while employed in removing certain goods from the county fair grounds of the defendant. He was thrown from a moving van by coming in contact with a guy wire supporting a telephone pole, and connected with a tree some thirty-one feet distant. A verdict was rendered for the plaintiff. Subsequently, the learned court below entered judgment n.o.v. for the defendant, on the ground that no negligence had been proved, and, further, that there was clear contributory negligence on the part of plaintiff. From the order made, this appeal has been taken.
It appeared by the testimony that the defendant, a Fair Association, maintained grounds of considerable size, containing a race track, grandstand and other structures, for exhibition purposes. Portions of the premises were used by various parties for shows and entertainments. One exhibitor maintained a doll show, and, on the last day of the fair, employed a trucking concern to remove its paraphernalia from the place. For this purpose a motor of unusually large size, having a length of twenty-eight feet and a height of eleven feet, was employed. It was sent, on a clear afternoon, from Bethlehem, but, by reason of the low opening of the gate at the north-east corner, where normally it would have gone in, it moved to another and larger entrance, and drove upon a cinder roadway which passed north of the grandstand. After going some distance, the car turned onto the grass on the north side, approaching the point where the property of the concessionaire was located. The driveway, referred to, was more or less obstructed by certain booths built against the grandstand, but it is clear from the evidence that there was no difficulty in moving the truck to the south of the telephone pole to which the wire was attached. The car was turned and the property to be moved loaded. The boxes were sufficient in number to occupy practically all of the body of the truck, and on top of them was placed a board platform thirty-five feet long, which extended seven feet beyond the rear of the van. Above the tailboard there was a cross-chain, and upon this the plaintiff was standing, with his head above the top of the car, when the accident occurred.
In returning to the gate by which entrance was made, the vehicle was not driven back to the cinder roadway as it had approached, but was taken straight across the grass in the direction of the exit. Evidence was given that there were ruts in the grass, north of and adjoining the established way, indicating that other motors had moved in a similar manner, and it was testified by Sims, the driver, that a man with a badge, whom he took to be an employee, motioned him to return the way he followed. No verbal directions were given, and the only evidence in the case shows that, though policemen were employed to protect the public from possible injury from the automobiles which were racing upon the track to the south, yet none had authority to give directions as to the movement of vehicles.
On the north side of the established road was an electric light pole, and this was supported by a guy wire fastened some thirty-one feet farther to the north, as already noted. At the point where attached to the tree, the height was eight feet and seven inches, and this clearance gradually increased until the top of the pole was reached. For the first ten feet, the one and one-half-inch wire was concealed by the branches, extending out at a still lower distance above the ground. Onward to the pole, it was clearly visible.
Plaintiff was standing on the cross-chain, at the rear of the truck, with his head above its top, which was eleven feet from the ground. On the roof, a boy was lying on his back. It is claimed that when the car moved toward the gate it passed at from one to five feet from the tree, where the wire was concealed; but this, under the undisputed testimony, would have been impossible, since the clearance necessary for the eleven-foot truck could not have been attained unless it was practically ten feet from the tree, the free space there being eleven feet and seven inches, and at which point, and until the pole was reached, the obstruction complained of could be clearly seen. It was testified that the wire within the tree touched the face of the boy lying on the top of the van, and struck Kelly, who was standing with his head extending above, throwing him to the ground and causing the injury.
There can be no doubt of the fact that plaintiff was an invitee of the defendant company, and that to him there was owed the duty of exercising reasonable care (Robb v Niles-Bement-Pond Co., 269 Pa. 298; Lerner v. Bergdoll, 285 Pa. 193; Siver v....
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