Powell v. Wilhelm

• Decision Date: 01 March 1912
• Docket Number: 154-1911
• Citation: 49 Pa.Super. 268
• Parties: Powell, Appellant, v. Wilhelm
• Court: Pennsylvania Superior Court

49 Pa.Super. 268

Powell, Appellant, v. Wilhelm

No. 154-1911

Superior Court of Pennsylvania

March 1, 1912

Argued October 26, 1911

Appeal by plaintiff, from judgment of C.P. Blair Co.-1909, No. 223 for defendant n. o. v. in case of Edward E. Powell v. George Wilhelm, George Schimminger and William R. Ramsay Copartners, trading as the Altoona Brewing Company.

Trespass to recover damages for personal injuries. Before Baldrige, P J.

The facts are stated in the opinion of the Superior Court.

At the trial the jury returned a verdict for the plaintiff for $ 40.00. Subsequently the court entered judgment for defendant non obstante veredicto.

Error assigned was in entering judgment for defendant non obstante veredicto.

R. A. Henderson, with him Clyde E. Brown, for appellant. -- It would not have been necessary for any instructions to have been given the driver in order to charge his employers for his negligence in delivering the beer: Brennan v. Merchant & Co., 205 Pa. 258.

The question before an appellate court on appeal from judgment for defendant non obstante veredicto under the Act of April 22, 1905, P. L. 286, is whether the lower court upon a review of the whole case would have been justified in giving binding instructions for defendant: Lightcap v. Nicola, 34 Pa.Super. 189; Stout v. Young, 217 Pa. 427; Dalmas v. Kemble, 215 Pa. 410; Bond v. R. R. Co., 218 Pa. 34.

If a party makes a gratuitous engagement, and actually enters on the execution of the business, and so negligently does it from want of due care that another suffers damage thereby, an action will lie for this misfeasance: Rehder v. Miller, 35 Pa.Super. 344; Gates v. Penna. R. R. Co., 150 Pa. 50; Fuhrmeister v. Wilson, 163 Pa. 310.

The question of contributory negligence cannot be treated as one of law unless the facts and the inferences from them are free from doubt. If there is a doubt as to either the case is for the jury: Coolbroth v. Penna. R. R. Co., 209 Pa. 433; Wall v. Pittsburg, 205 Pa. 48; McHugh v. Kerr, 208 Pa. 225; Glading v. Philadelphia, 202 Pa. 324; Gillard v. Chester, 212 Pa. 338; Brown v. Milligan, 33 Pa.Super. 244; March v. Phoenixville Boro., 221 Pa. 64.

The public has the right to use of the entire sidewalk in a city and a grating covering a hole must be kept in repair regardless of the proximity of the hole to the building: McLaughlin v. Kelly, 230 Pa. 251; Gillard v. Chester, 212 Pa. 338; Brown v. Milligan, 33 Pa.Super. 244; March v. Phoenixville Boro., 221 Pa. 64.

Thomas H. Greevy, with him E. G. Brotherlin, for appellee. -- The case was ruled by Scheafer v. Iron City Sand Co., 31 Pa.Super. 476.

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

RICE, J.

The defendants were engaged in the brewing business, and for many years had sold and delivered beer to the proprietor of a hotel situate on Eleventh street in the city of Altoona. The evidence would warrant a finding that, according to the course of dealing between these parties, delivery of beer was not complete until it was placed in the ice box in the cellar of the hotel, and that the method of doing this was by taking off the lid of a hole in the sidewalk in front of the hotel, dropping the barrel or keg through this hole into the cellar, and then carrying it to the ice box which stood near. The testimony as to the exact size and location of this hole varied. But there was testimony that it was from three to five feet from the barroom door, that the opening was about two feet and eight inches wide by three feet long, and that its inner edge was from three to five inches from the wall of the building. Between seven and eight o'clock of the evening of July 31, the defendants' driver, in the regular course of his employment, drove their beer wagon to the curb in front of the hotel, unloaded a half barrel of beer, then opened the hole, and, after dropping the barrel into the cellar, went in and carried it to the ice box and deposited it therein. According to the testimony of the driver, the time occupied, during which the opening in the sidewalk was left uncovered and unguarded, was about four minutes. During that time, the plaintiff came out of the barroom door, and what then occurred is thus described by him: " The street was crowded, even the curb and sidewalk, and still close into the window, but the people was traveling in both directions. I went to step out of the way of somebody and stepped over to this trap hole, and stepped fair and square down into it." He also testified that the hole was just outside a barroom window and that, although he was giving attention to where he was going, he did not see it. In further explanation of that fact, he testified: " It was kind of dark there, darkened by the curtain or whatever they have got up at the glass to keep people from looking into the bar, and also a fire escape hanging right above the window kind of darkened this hole where I was walking." The defendants alleged, and gave evidence tending to show, that he was intoxicated, and that the accident occurred by reason of that fact. But he denied that he was intoxicated, and, therefore, that question was for the jury. Their verdict, interpreted in the light of the court's answer to the defendants' first point, implies a negation of the defendants' contention upon this point.

The reasonable care which the law exacts of all persons, in whatever they do involving the risk of injury, requires travelers on the footways of public streets to look where they are going; but this does not necessarily imply that the pedestrian must keep his eyes constantly and at every moment upon the pavement. If there is a conflict of testimony, or for any cause, there is a reasonable doubt as to the facts, or as to the inferences to be drawn from the facts established by the evidence, the contributory negligence of the pedestrian is a question for the jury. Robb v. Connellsville Boro., 137 Pa. 42; Lerner v. Phila., 221 Pa. 294; Graham v. Phila., 19 Pa.Super. 292; Brown v. Milligan, 33 Pa.Super. 244; and Ford v. Phila., 45 Pa.Super. 404, are some of the many cases in which these principles have been recognized and applied. It is true, there are exceptional cases in which it has appeared, by the plaintiff's own testimony, that, if he had looked, he must necessarily have seen the obstruction, and that there was nothing to prevent him from looking. The case of Stackhouse v. Vendig, 166 Pa. 582, was a case of that character. There, the Supreme Court refused to sustain a recovery because " he took no heed of his movements. Had he been looking where he...