Reeves v. Philadelphia Import Co.

• Decision Date: 12 May 1944
• Docket Number: No. 8476.,8476.
• Citation: 150 F.2d 854
• Parties: REEVES v. PHILADELPHIA IMPORT CO.
• Court: U.S. Court of Appeals — Third Circuit

150 F.2d 854 (1944)

REEVES v. PHILADELPHIA IMPORT CO.

No. 8476.

Circuit Court of Appeals, Third Circuit.

Argued January 21, 1944.

Decided May 12, 1944.

Richard A. Smith, of Philadelphia, Pa. (Louis Wagner and Stephen J. McEwen, both of Philadelphia, Pa., on the brief), for appellant.

Herbert A. Barton, of Philadelphia, Pa. (C. Donald Shwartz and Swartz, Campbell & Henry, all of Philadelphia, Pa., on the brief), for appellee.

Before JONES and McLAUGHLIN, Circuit Judges and KALODNER, District Judge.

McLAUGHLIN, Circuit Judge.

This is an appeal from a plaintiff's judgment, the result of a personal injury negligence action. The accident occurred in Philadelphia, with the suit started and tried in the Eastern District of Pennsylvania. The case is in the United States Courts because of diversity of citizenship. The law applicable is that of Pennsylvania. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; Ruhlin v. New York Life Insurance Co., 304 U.S. 202, 58 S.Ct. 860, 82 L.Ed. 1290.

The plaintiff was a man about thirty-nine years old at the time of the accident involved here. He was employed by a lumber company, in loading and unloading its trucks. He had been with the same concern about twenty-one years. On June 10, 1940, he brought a load of planks to the defendant's mill in the City of Philadelphia, for the purpose of having them planed, tongued and grooved. He left the planks at the rear of the planer, made another stop in the yard to get some different type of lumber, and then brought his truck around to the front of the planer for the loading of the dressed lumber upon it.

Plaintiff backed his truck against the loading platform, which really consisted of a conveyor belt on which the lumber continued after leaving the planer. The back of he truck was close to the front of the conveyor belt. Plaintiff, on his own behalf, testified that the only thing he was told by defendant's employees was to go around "and back up to the planer." He said no one offered to help him. As the lumber came off the conveyor, plaintiff arranged it on his truck. He had all the lumber aboard except three or four pieces before the accident happened. In his testimony he described the accident as follows:

"A. One piece of lumber came out and I picked it up, started to roll it to the west side of the truck. By the time I came there another one hooked on and it buckled and hit me and knocked me to the ground.

"Q. Where were you when this piece came out? In what position were you? A. I was just turning around to get another one when another one hit me.

"The Court: And knocked you to the ground from the truck?

"The Witness: From the truck.

"The Court: From the truck?

"The Witness: Yes."

He described the buckling as being caused by the plank then coming off the conveyor striking the end of a plank already on the truck. Earlier in Reeves' testimony, asked to describe what he saw defendant's employees do in the operation of the planer, he replied, "I just saw them feed the machine, that is right, feeding too fast so I couldn't get it away." He also said regarding prior visits to defendant's place of business, "On other occasions, whenever I went there, I always picked the stuff off the ground. It was all done waiting for me."

The foreman of the defendant was a witness on the latter's behalf. He said that he told the plaintiff to go around in the back of the mill and get the lumber. He testified that there is a handle on the planer which, when pulled toward the operator, stops the movement of the planks immediately. The person who fed the lumber into the conveyor was a defense witness. He said that from his position if he leaned toward his left side he could see the truck. With reference to the necessity of him observing plaintiff, there is the following testimony by him:

"Q. You say when you leaned over to your left side — did you look out there from time to time? A. Yes, sir; I had to.

"Q. When was the last time you looked out — what piece was going through? A. I guess about the thirty-fourth or thirty-fifth.

"The Court: He used the expression there, `Yes, sir; I had to.' What do you mean you had to?

"The Witness: Why, you got to watch the man at the truck every once in a while.

"The Court: Watch the man at the truck?

"The Witness: Watch out there — see how things go; yes, sir."

This man did not see the accident. The last time he looked toward the truck was when he had about four or five pieces left to put into the planer. He had no idea how much lumber was on the truck but did admit that the pile was going up. Asked whether he could see that it was going up higher than the conveyor, he replied, "If you want to you could look out and see it."

One Frank Bell was a witness for the defense. He was playing ball alongside the planing mill and said that he could see the plaintiff working. He said further, "Just out of the tail of my eye, I could see that there was work going on and all. I saw him lose his balance and fling his arms up and go off the side of the truck backwards, towards me." Asked if he saw any planks buckling, he said, "I saw no activating force at all, as far as pushing him off the truck was concerned."

Uhlman, the foreman, also testified that he saw Reeves after the accident and that with reference as to how the accident happened, Reeves' answer to him was, "Why he just says that he fell off of the truck." Asked if Reeves said anything about any timbers buckling, Uhlman said, "Not at the time." Uhlman also said that at the time he told Reeves to go around in back of the mill and get the lumber, he offered help and Reeves refused it.

The above is substantially the fact testimony in the case. Plaintiff was a business invitee on the defendant's premises and entitled to reasonable care. Nettis v. General Tire Co. of Philadelphia, 317 Pa. 204, 177 A. 39; Newingham v. J. C. Blair Co., 232 Pa. 511, 81 A. 556; Robb v. Niles-Bement-Pond Co., 269 Pa. 298, 112 A. 459. It seems to us that whether the defendant here exercised such care was a question of fact for the jury. Reeves, although he had been at the defendant's plant before the accident, had never before actually loaded lumber on to his truck direct from the conveyor. According to his testimony, he was busily engaged in stacking the lumber and as he turned around from the piece he was then handling, the incoming...