Brewster v. Morrone , 395 Pa. 642 ( 1959 )

Opinion by

Mr. Justice Bell,

Plaintiff recovered a verdict in trespass for personal injuries. Defendants’ motion for judgment non obstante veredicto was dismissed, and from the judgment entered on the verdict, defendants took this appeal. In considering defendants’ motion for judgment n.o.v., we shall of course consider the evidence and all reasonable inferences therefrom in the light most favorable to plaintiff.

Plaintiff, who was 31 years of age and blind in one eye, was employed by a catering concern near New Castle, in Lawrence County. Ilis duties were to deliver coffee and sandwiches to various factories and garages where he could likely sell the food to employees in such factories. Defendants conduct a small auto body shop in a building made of cement blocks on East Washington Street Extension, next to the Ellwood City-New Castle Road, a public road. For 6 days a week and for 6 months prior to the date of the accident on April 29, 1955, plaintiff had sold coffee and sandwiches in defendants’ shop to their employees. On the morning of the accident plaintiff arrived about 11 o’clock a.m., as was his custom, and called “coffee man”. It was a bright day, the sun was shining, the body shop was filled with light, and visibility was excellent. Plaintiff saw a large automobile about 4 feet ahead of him. He walked forward without looking at the automobile because his attention was directed to tools on the floor. As he walked along the floor looking at the floor, his head struck a large plank which was used to raise the body of the automobile from the frame or chassis in order to change frames or make necessary repairs. This 2 by 6 inch plank was 10 feet long. The ends of the plank were equipped with U-bolts attached to chains extending from a pulley which, in turn, was attached to a slide on the garage ceiling. By this means they were able to hoist the body of the automobile and thereby remove the chassis. It extended through the window of the automobile (which was being repaired) from 2 to 4 feet over the floor of the defendants’ shop between the automobile and the East wall of defendants’ shop. Plaintiff testified he struck his left eye on this plank and was knocked to the floor. No one saw the accident as defendants’ employees were at that time in the rear of the shop. There were 24 panes of clear glass in each of the two large gar-age doors in defendants’ body shop and the accident occurred about 15 feet from these doors.

Plaintiff was assisted to his feet by defendants’ employees and after assuring them that he was all right, continued the balance of the day to see his regular customers. Plaintiff about 6 weeks later lost the sight of his left eye, which left him totally blind. There is no evidence that defendants had any knowledge before the accident that plaintiff had lost the sight of his right eye.

Two questions are presented: (1) Did plaintiff prove that defendants were guilty of negligence; and (2) Was it clear as a matter of law that plaintiff was guilty of contributory negligence? Both questions must be answered in favor of the defendants.

Plaintiff alleges that defendants were negligent because they permitted tools to lie on the floor, and they permitted the plank to extend from the window of this car and failed to warn plaintiff of the danger of this plank, and because they failed to erect a barricade around this dangerous area.

Plaintiff produced no evidence that defendants were engaged in any enterprise in a manner other than standard operating procedure in a repair shop. The raising of an automobile body by means of a large plank or lever is an absolutely essential operation in the conduct of defendants’ business and to require every little body maker or repair shop owner to barricade this or other essential and obvious operations would be so confiscatory as to impose a burden unwarranted by reality or law.

Even if it be assumed, arguendo, that plaintiff was a business invitee, as distinguished from a mere licensee,^* plaintiff failed to prove that defendants were negligent: Rogers v. Max Azen, Inc., 340 Pa. 328, 16 A. 2d 529. In that case plaintiff, who was a customer in defendant’s store, tripped over a half inch base by which a bannister was anchored to the floor and on which, it rested. This Court entered a judgment n.o.v. and said (page 330) : “Ordinarily no liability attaches for injuries from alleged dangers or defects which were obvious or known to the person injured, for, all that the law requires is that the premises be so constructed and maintained that they can be used without danger by pei'sons using ordinary care for their own safety.”

In McCreary v. Westmoreland Farm Bureau Cooperative Association, 357 Pa. 567, 55 A. 2d 399, the Court said (page 570) :

“ [While it is] the duty of a possessor of premises toward a business invitee ... to keep the premises in a reasonably safe condition or warn of dangers thereon which the occupier knows or should know exist . . . [t]here is no duty, however, upon the possessor of land to warn or guard a business invitee against a danger that is obvious.”

See to the same effect: Macalady v. Whelan Drug Co., 179 Pa. Superior Ct. 563, 117 A. 2d 811; Burckhalter v. Woolworth Co., 340 Pa. 300, 16 A. 2d 716; Wurster v. Armstrong, 145 Pa. Superior Ct. 583, 21 A. 2d 650.

We summarize: To allow a jury to find that the defendants were negligent in this case would place an unreasonable and confiscatory burden on all body shops, garages, service stations and factories in Pennsylvania and would make the owners thereof insurers. That is not the law.

Plaintiff admitted that he could see well, and daily drove an automobile. It is obvious from the testimony that he could have seen the plank if he had looked where he was walking. It is indisputable that plaintiff had actual knowledge of the kind of work that defendants performed in this auto body shop and the conditions under which the work was done, because he had come into the shop for 6 days a week for 6 months before the accident occurred. A plaintiff cannot impose liability upon the owner of property if he walks thereon without using his senses; he cannot recover if he blindly walks into a projecting object which was obvious and which he could have seen if he had looked. Failure to look, under such circumstances, or failure to see what was obvious if he had looked, cannot absolve him from contributory negligence.

On both direct and cross examination plaintiff testified that he did not see the plank “before I struck it. Q. Couldn’t you have seen it if you looked in that direction? A. Possibly I would have. Q. Anyway you didn’t look, is that right? A. I looked in a general direction, just glanced down. . . . the car was dark and this plank was dark and the sun caused shadows.”

Plaintiff testified, we repeat, that it was a bright day, the sun was shining through the windoAVS and doors of the garage, the body shop was filled Avith light, and the visibility Avas excellent. There is no obligation upon the defendants, in the exercise of reasonable care, to íoIIoav the sun throughout the day to see if it might cast a shadow on any repair job upon which they are Avorking, or indeed upon any part of their shop. To require defendants to MIoav the sun throughout the day in order to attempt to prevent it from casting' a shadow in some part of their shop, or to warn a person in the shop against the shadows of the sun would be to impose a highly impractical and unjustifiable legal burden upon any property owner. Moreover, the fact that one employee and the defendants had on a previous occasion struck their head on this plank AVhile working on the repair of an automobile, neither proves negligence on the part of defendants nor absolves plaintiff from contributory negligence.

In Druding v. Philadelphia, 374 Pa. 202, 97 A. 2d 365, tills Court entered a judgment n.o.v. because of plaintiff’s contributory negligence. He dove into a city pool which was then about 2 feet deep and which was being drained although about 65 to 100 people Were still using it. No sign or warning was given by the city to persons using the pool that it was being drained. Plaintiff had not been in a swimming pool for approximately 26 years. The language of that opinion^* is equally applicable to the instant case:

. . as Mr. Justice Jones said in McCreery v. Westmoreland Farm Bureau, 357 Pa. 567, 570, 55 A. 2d 399: ‘There is no duty, however, upon the possessor of land to warn or guard a business invitee against a danger that is obvious.’

“ ‘No person is required to take extraordinary precautions to save adults in apparent possession of their reasoning faculties from the consequences of their own inattentiveness and carelessness. . . “Everyone has a right to proceed upon the assumption that those to whom he owes a duty of care are normal in every respect and prepared on their part to exercise the care of prudent persons generally” ’: Jefferson v. Y.M.C.A., 354 Pa. 563, 567, 47 A. 2d 653.

“ ‘What this court stated in Bailey v. Alexander Realty Co., 342 Pa. 362, 20 A. 2d 754, applies to the instant case: “. . . When an individual can assure his own safety by the use of his senses, he must do so or abide the consequences of his carelessness . . . The duty of availing oneself of one’s senses, for self-protection can seldom be breached with physical impunity and never with legal sanction . . . The rule that a victim cannot recover damages for injuries sustained by bim if he could have avoided the injury by the exercise of ordinary care bars this plaintiff’s recovery:” ’ Bartek v. Grossman, 356 Pa. 522, 525, 52 A. 2d 209.

“ ‘A person may not recover for injuries which are received as a result of a failure on his part to observe and avoid an obvious condition which ordinary care for his own safety would have disclosed’: Boock v. Acme Markets, Inc., 347 Pa. 501, 503, 32 A. 2d 759; Rogers v. Max Azen, Inc., 340 Pa. 328, 16 A. 2d 529.”

The judgment is reversed and is here entered for the defendants non obstante veredicto.

* The duty which an owner or possessor of land owes to a business invitee is at least as great and, in most cases, greater than the duty owed to a mere licensee. If plaintiff was a licensee he clearly could not recover. See §341 of the Restatement of Torts, Comment a and Comment d, page 928.

* Pages 204-205.