McDevitt v. Terminal Warehouse Co.

• Citation: 450 A.2d 991,304 Pa.Super. 438
• Parties: Frank McDEVITT, Appellant, v. TERMINAL WAREHOUSE COMPANY and Scott Brothers, Division of Pennsylvania Truck Lines, Inc. Frank McDEVITT, Appellant, v. TERMINAL WAREHOUSE CO. v. SCOTT BROTHERS DIV. OF PENNSYLVANIA TRUCK LINES, INC.
• Decision Date: 12 October 1982
• Court: Superior Court of Pennsylvania

Page 991

450 A.2d 991

304 Pa.Super. 438

Frank McDEVITT, Appellant, v. TERMINAL WAREHOUSE COMPANY and Scott Brothers, Division of

Pennsylvania Truck Lines, Inc.

Frank McDEVITT, Appellant, v. TERMINAL WAREHOUSE CO. v. SCOTT BROTHERS DIV. OF PENNSYLVANIA TRUCK LINES, INC.

Superior Court of Pennsylvania.

Argued Jan. 19, 1981.

Filed June 25, 1982.

Reargument Denied Oct. 12, 1982.

George J. O'Neill, Philadelphia, for appellant.

J. Paul Erwin, Jr., Philadelphia, for appellees.

Before HESTER, POPOVICH and DiSALLE, JJ.

POPOVICH, Judge:

This case involves cross-appeals in a trespass action brought by the appellant-Frank McDevitt (McDevitt) for injuries he sustained on the premises of appellee-Terminal Warehouse Co. (Terminal) while in the course of his employment for Scott Brothers, a trucking firm. A jury returned a verdict in favor of McDevitt and against the appellee and Scott Brothers in the amount of $200,000.00. At post-trial, the court en banc granted appellee's and Scott Brothers' motion for a new trial, but denied their motion for judgment non obstante veredicto. An appeal was filed by the appellant ¹ from the order granting a new trial, while the appellee questions the denial of the judgment n.o.v. ² We affirm in part and reverse in part.

On appeal from the refusal of the trial court to enter judgment for the defendant-appellee non obstante veredicto, the sole duty of the appellate court is to decide whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner, the appellant here, the benefit of every favorable inference reasonably to be drawn from the evidence. Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980). All unfavorable testimony and inferences must be rejected. Smith v. Kravitz, 173 Pa.Super. 11, 93 A.2d 889 (1953). As to reviewing on appeal the grant or refusal of a new trial, we will not reverse the lower court's action " 'absent an abuse of discretion or error of law which controlled the outcome of the case.' " Allison v. Snelling & Snelling, Inc. 425 Pa. 519, 521, 229 A.2d 861, 862 (1967); Gougher v. Hansler, 388 Pa. 160, 130 A.2d 150 (1957); Lambert v. Durallium Products Corp., 364 Pa. 284, 72 A.2d 66 (1950). In compliance with such standards, the following facts, as warranted by the evidence and established by the verdict, appear.

Terminal operated a warehouse complex in the City of Philadelphia, located on 2nd Street and Erie Avenue. A portion of that complex, namely a parking area, was subleased to Scott Brothers for their tractors and trailers. Interestingly enough, the lease agreement made no mention as to which party would be responsible for the maintenance of the premises. A review of the record indicates, however, it was the common and accepted practice that complaints lodged by Scott Brothers' employees with their supervisors, regarding the condition of the parking facilities, would be forwarded to the personnel at Terminal, and they, in turn, would make the needed repairs. It is to be noted that when this maintenance work was performed, Terminal's employees were always used.

With such facts as a backdrop, we recount the circumstances precipitating the instant litigation. McDevitt, an employee for Scott Brothers for about sixteen years, had been assigned to the 2nd Street and Erie Avenue warehouse for some "five, six years" prior to the date of his accident on November 1, 1966. On the date just mentioned, at approximately 8:00 p. m., McDevitt, in his capacity as "helper," was assisting a Scott Brothers' driver (Larry Ballard) park his tractor-trailer between two other "rigs." Since there was no lighting in the area, McDevitt "was looking at the ... skyline." (N.T. 307) He did this because he "could tell by the silhouette of the outline of the trailer just where it was going, maneuvering, to go back in[to the parking slot]." (N.T. 306 & 307) With appellant standing along the passenger side of the tractor-trailer, the driver angled the trailer portion of the vehicle into position. The driver then stopped and pulled forward in order to align the trailer with the tractor before attempting to back the entire "rig" into the parking space. During this pause, appellant situated himself approximately 12 feet from the front bumper of the tractor, i.e., between the dolly wheels and the tractor wheels, facing the rear of the vehicle. Additionally, because of the poor lighting available (which precluded McDevitt from seeing the ground in front of him), appellant placed his right hand on the side of the trailer to guide and to steady himself as he walked with the moving truck--this made him feel "a little safer with it there" and allowed him to sense when he was getting too close to the trailer. (N.T. 346 & 358) Thereafter, the tractor-trailer traveled a distance of some 15 feet before the appellant "stepped in a hole with [his] right foot"--the hole was deep enough to encompass his entire foot. (N.T. 312 & 324) The appellant then lost his balance and fell down on his right knee, and that is when he felt his right foot get caught under the back rear wheel of the tractor. McDevitt screamed hysterically, "Stop! Stop! Stop!" Before the driver heard him so as to react and move the vehicle forward, the victim's right foot was crushed, causing permanent injury.

Appellee-Terminal contends that the evidence in this case "compel[s] the conclusion that judgment notwithstanding the verdict should have been granted on the ground that plaintiff[-appellant] was negligent and/or assumed the risk and that, in any event, the evidence was insufficient to take the case to the jury on the issue of Terminal Warehouse's negligence." ³ (Appellee's Brief at 6) Counsel for McDevitt, on the other hand, argues that his client "was acting under the 'compelling necessities' of his employment and violated no duty owing to himself or others." (Appellant's Reply Brief at 3)

The legal principles applicable to the present case were recently collected and set forth in McNally v. Liebowitz, 274 Pa.Super. 386, 389, 418 A.2d 460, 461 (1980) reversed on other grounds, 498 Pa. 163, 445 A.2d 716 (1982), wherein we stated:

"Although it is true that these 'darkness' cases necessarily depend largely on individual facts, Dively v. Penn-Pittsburgh Corp., 332 Pa. 65, 2 A.2d 831 (1938), this area of the law has been well developed and some general rules have evolved. Thus, in the absence of compelling necessity, it is generally held ' "that one who follows an unfamiliar course in the dark or steps into darkened and unfamiliar space, relying upon his sense of touch instead of obtaining and using adequate lighting facilities, and sustains personal injuries, is guilty of contributory negligence as a matter of law." ' Just v. Sons of Italy Hall, 240 Pa.Super. 416, 422, 368 A.2d 308, 312 (1976) (emphasis in original), quoting Barth v. Klinck, 360 Pa. 616, 618, 62 A.2d 841, 842 (1949). '[D]arkness is, in itself, a warning to proceed either with extreme caution or not at all.' Barth v. Klinck, supra at 618, 62 A.2d at 842; Mogren v. Gadonas, 358 Pa. 507, 511, 58 A.2d 150, 152 (1948). The controlling factors in determining the question whether one was contributorily negligent in proceeding in the darkness are the degree of darkness and the justification for the injured person's presence in the place of danger. Dively v. Penn-Pittsburgh Corp., supra; Just v. Sons of Italy Hall, supra.

The degree of darkness is important in determining if appellant had reason to apprehend the danger. If the area was not totally dark, she may have been reasonably justified in assuming that with appropriate care she could reach the end destination without mishap. In all cases one must use the senses that are available, Bartek v. Grossman, 356 Pa. 522, 52 A.2d 209 (1947), and it is only when a plaintiff uses his sense of sight carefully and reasonably believes that he can 'see his way', but was then deceived by shadows, that the question of his negligence will be for the jury. McKown v. Demmler Properties, Inc., 419 Pa. 475, 214 A.2d 626 (1965); Carns v. Noel, 364 Pa. 77, 70 A.2d 619 (1950); Falen v. Monessen Amusement Co., 363 Pa. 168, 69 A.2d 65 (1949)."

Further, this Court held in Devine v. Hollander, 192 Pa.Super. 642, 648, 161 A.2d 911, 914-915 (1960) that "... a person may be declared guilty of contributory negligence when he wanders around in darkness in a place where he has no reason to be, such a declaration will not be made if he has a fairly compelling reason to be there and the place is not utterly devoid of light." (Emphasis added) (Citations omitted)

Applying the governing rules outlined supra, it is clear that the appellant had a "fairly compelling reason" for walking on the parking grounds since he was in the process of performing his job. See Scurco v. Kart, 377 Pa. 435, 105 A.2d 170 (1954) (plaintiff had a "fairly compelling reason" for walking through the hallway since she was bound for her place of employment); see also Draper v. Airco, Inc., 580 F.2d 91, 102-103 & n. 12 (3rd Cir. 1978); Restatement (Second) of Torts, § 343A, Comment f, Illustration No. 5. As for a determination as to the degree of darkness, necessarily intertwined therewith is an evaluation of the reasonableness of appellant's actions under the circumstances. Krusinski v. Chioda, 394 Pa. 90, 103, 145 A.2d 681, 687 (1958) ("The criterion of accountability ... in a negligence case is not what an injured person might have done to avoid mishap, but whether what he did under the circumstances is what a reasonably prudent person would have done."); Jewell v. Beckstine, 255 Pa.Super. 238, 386 A.2d 597 (1978).

In the case sub judice, we have an employee-employer situation; as such:

"In determining the standard of conduct of one who is injured in the performance of his employment, the working conditions and all of the circumstances incident thereto, including his obligation to do his job, must be considered: ...