McCreery v. Westmoreland Farm Bureau Co-operative Association

• Decision Date: 10 November 1947
• Docket Number: 2837
• Citation: 357 Pa. 567,55 A.2d 399
• Parties: McCreery, Appellant, v. Westmoreland Farm Bureau Co-operative Association
• Court: Pennsylvania Supreme Court

55 A.2d 399

357 Pa. 567

McCreery, Appellant, v. Westmoreland Farm Bureau Co-operative Association

No. 2837

Supreme Court of Pennsylvania

November 10, 1947

Argued September 30, 1947

Appeal, No. 153, March T., 1947, from judgment of C.P Westmoreland Co., Aug. T., 1946, No. 140, in case of Harry E McCreery v. Westmoreland Farm Bureau Co-operative Association. Judgment affirmed.

Trespass for personal injuries. Before LAIRD, J.

Compulsory nonsuit entered. Plaintiff's motion to take off nonsuit refused. Plaintiff appealed.

Judgment affirmed.

James Gregg , with him Louis E. Sensenich and Portser, Gregg & McConnell , for appellant.

Paul M. Robinson , for appellee.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.

OPINION

MR. JUSTICE JONES

This is an appeal from a judgment of compulsory nonsuit entered in a trespass action for damages for personal injury. The learned court below acted in the manner stated on the grounds that the plaintiff failed to prove the defendant negligent and that the injury in suit was the result of the plaintiff's contributory negligence. In reviewing the refusal of the court below to take off the compulsory nonsuit entered at trial, we necessarily take the evidence adduced in the plaintiff's case as true, reading it in the light most favorable to him and giving him the benefit of every doubtful or obscure fact and all reasonable inferences that a jury might derive from the evidence: Lerch v. Bard , 153 Pa. 573, 575, 26 A. 236; McGrann v. The Pittsburgh & Lake Erie Railroad Company , 111 Pa. 171, 183, 2 A. 872; Hill v. The Nation Trust Company , 108 Pa. 1, 3. So viewed, the following facts may be taken as established.

The plaintiff, Harry McCreery, a farmer, left grain to be ground and mixed with concentrate at the plant of the corporate defendant, Westmoreland Farm Bureau Co-operative Association, located in Ligonier, Westmoreland County. He returned a short time later and, not finding his grain processed, began walking about the plant. Seeing what he believed to be grain (actually concentrate) piled on a floor at the base of a large pipe and mixer, he reached with his left hand into the pile for a sample for his inspection. As a consequence, his hand was caught and severely injured in the worm-gear machinery of the mixer located underneath the concentrate and below the level of the floor. The plaintiff's evidence in conjunction with two accurately representational photographs (offered by the defendant in connection with the cross-examination of the plaintiff and received in evidence with the plaintiff's approval) reveals that the pile on the floor consisted of concentrate which mounted to a height of approximately six inches above the level of the floor and completely hid from view a rectangular opening in the floor (forming the upper part of a sort of hopper) underneath the concentrate. The opening of the hopper at the floor level was fifteen by eighteen inches. A large pipe, approximately fourteen inches in diameter, standing in an upright position and with its lower end below the floor level, formed one side of the hopper whose other three sides sloped inward below the floor level toward the bottom of the pipe. Three iron bars across the base or bottom of the hopper and about even with the lower end of the upright pipe were situated immediately above the worm gear which, according to the plaintiff's testimony, was in its position six inches below the floor level. Four upright metal posts constituted the support of a large funnel-shaped and cylindrical metal hopper which stood up in the room over the hopper in the floor. The funnel-shaped end of the large, cylindrical metal hopper was joined, about four feet above the level of the floor, to the vertical pipe which descended into the hopper in the floor. The plaintiff testified that he had been in the grinding room before; that the machinery was running; that he could hear it running; and that when his hand got caught, he had leaned over and reached down pretty far, i.e., into the hopper below the floor level.

The duty of a possessor of premises toward a business invitee is an affirmative one, viz., to keep the premises in a reasonably safe condition or warn of dangers thereon which the occupier knows or should know exist: see Curt v. Ziman , 140 Pa.Super. 25, 29, 12 A.2d 802, and cases there cited. There is no duty, however, upon the possessor of land to warn or guard a business invitee against a danger that is obvious: curt v. Ziman , supra; Walker v. Broad and Walnut Corporation et al., 320 Pa. 504, 506, 182 A. 643; Rice v. Kring , 310 Pa. 550, 555, 165 A. 833; Vant v. Roelofs , 217 Pa. 535, 537, 66 A. 749. See also Restatement, Torts, § 343.

On the basis of the legal principles applicable, there is no liability on the defendant in the instant case. The testimony adduced by the plaintiff failed to prove anyone negligent save himself. There is not a word of evidence that the defendant did not keep its plant in a reasonably safe condition or that, under the circumstances, there should have been guards or other protection over the grain or concentrate flowing down into the hopper in the floor or that warning signals above the floor over the worm gear underneath should have been posted. On the other hand, there was no occasion, and by the same token no duty, requiring the owner or occupier of the premises to warn the business invitee...