Kinsey v. Locomobile Co. of America
| Decision Date | 19 February 1912 |
| Docket Number | 179,178 |
| Parties | Kinsey v. Locomobile Company of America, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 8, 1912
Appeals, Nos. 178 and 179, Jan. T., 1911, by defendant, from judgment of C.P. No. 4, Phila. Co., Dec. T., 1908, No. 2669 on verdict for plaintiff in case of Sherman Kinsey, by his father and next friend, John H. Kinsey and John H. Kinsey v The Locomobile Company of America. Affirmed.
Trespass to recover damages for personal injuries. Before CARR, J.
At the trial the jury returned a verdict for plaintiff for $5,000.
On motion for judgment for defendant n.o.v. CARR, J., filed the following opinion:
The defendant's motion for judgment non obstante veredicto presents two questions: the duty which the defendant owed the plaintiff, and the degree of care which the plaintiff Sherman, exercised at the time of the accident.
The plaintiffs contend that Sherman, who was injured, was on the premises of the defendant for the purpose of his employment as chauffeur for Dr. Stewart, and that while working on the second floor of building he was engaged in his lawful employment, and that it was a question of fact for the jury to determine whether he was there by virtue of an implied invitation from the defendant, and that, if so, it was the duty of the defendant to keep the premises in a reasonably safe condition so that he might not be exposed to injury.
The defendant claims that Sherman was upon its premises as a licensee merely, and that therefore it owed him no duty except not to wilfully injure him or negligently permit him to encounter hidden peril.
The determination of the respective rights and duties of the parties depends in the first place upon the fact of employment as chauffeur of Sherman by Dr. Stewart, and, in turn, his rights and those of his chauffeur to the use of the second floor of the building, and the degree of care thereby owing to Sherman from the defendant.
The defendant is an owner and proprietor of a public garage for the storing and repairing for pay of automobiles, situated on the east side of Broad street between Race and Vine streets, and extending eastward to Watts street. The building consists of a basement and three stories. In the basement the automobiles were washed and polished. The first floor was used as a salesroom, and its rear opened upon Watts street. An elevator was operated for carrying automobiles to the several floors, on the third of which was a repair shop, and the second of which was used for storage purposes.
The contract of storage between Dr. Stewart and the defendant does not appear in evidence. It was offered by neither side. Sufficient evidence, however, appears in the case to support the finding of the jury that Sherman was in fact employed as chauffeur by Dr. Stewart, who, in turn, had storage rights with the defendant.
If such rights did not exist the proof was readily at the defendant's command. No effort was made to disprove it by testimony. Sufficient proof also appears to support the jury's finding that Sherman was in the employ as chauffeur of Dr. Stewart, whose automobile was...
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