186 Pa. Super. 179 | Pa. Super. Ct. | 1958
Opinion by
Defendants, Herman J. Bonnert and May A. Bonnert, appeal from judgments entered upon a verdict against them in a trespass action for personal injuries after refusal of their motion for judgment notwithstanding the verdict.
The evidence viewed in a light most favorable to plaintiffs, with all reasonable inferences therefrom, establishes the following facts. On the evening of June 6, 1955, about 8:30 p.m., the plaintiffs, Vito Blasi and Daniel Conte, together with three other members of a
The collapse of the porch was due to the failure of wooden cross beams because of dry rot at points of support. The porch was approximately fifteen feet in length and extended from the building about five feet. It was constructed of wood and consisted of flooring over a “boxed-in” frame made of 2 by 6 inch, 2 by 4 inch, and 2 by 8 inch beams.
While an owner or possessor of land is not an insurer, he owes to a business visitor or invitee the duty of reasonable care for the latter’s protection and safety. It is his duty to keep the premises in a reasonably safe condition and, if there are any defects known or discoverable by the exercise of reasonable care and diligence, to warn the business visitor or invitee of the defects or danger. But the owner or possessor is not liable for a latent defect of which he is ignorant and which could not be discovered in the exercise of reasonable care and diligence. Miller v. Hickey, 368 Pa. 317, 324, 81 A. 2d 910. An important factor in this case is whether the defect would have been discovered if defendants had exercised reasonable care and diligence.
In determining whether the verdict of the jury in favor of the plaintiffs is based upon the evidence of record, we are required to consider not only the evidence presented by plaintiffs but also that presented by defendants which in fact and by inference would support the verdict. Cherry v. Mitosky, 353 Pa. 401, 407, 45 A. 2d 23. Defendants’ evidence indicated that they had owned the property for approximately seven
Whether a defendant's conduct or failure to act meets the standard of reasonable care and diligence is normally a matter for the jury to determine unless the evidence clearly establishes as a matter of law that he is not chargeable with fault. See Wilbert v. Pittsburgh Consolidation Coal Company, 385 Pa. 149, 154, 122 A. 2d 406; First National Bank of McKeesport v. Simko, 384 Pa. 603, 605, 122 A. 2d 47. In this case we are of the opinion that the issue was for the jury. From all the evidence and inferences from the circumstances, it was permissible for the jury to conclude that defendants had not fulfilled their duty of maintaining the premises in a reasonably safe condition for the protection and safety of business visitors and invitees. The verdict establishes that the jury believed that to maintain these premises in a reasonably safe condition for the purposes for which they were used required defendants to make reasonable and proper inspections, and that such inspections would have disclosed the hazardous condition. Except for an occasional glance at the underside of the porch while disposing of garbage, defendants made no inspection of
Defendants present the argument that because the defect was latent and not visible they had no duty to inspect. This ignores the fact that defendants' own evidence clearly established what a reasonable inspection would have been as well as the fact that they made no inspection calculated to disclose defects in the seven years of their occupancy. A witness for defendants who had examined the porch after the collapse testified on cross-examination as follows: "Q. And another accepted way of making an inspection to see if a structure of that type is being supported properly and if it is in good shape, would be to use a hammer — A. Yes, sir. Q. — for sounding. That is an accepted procedure in the carpentry trade? A. Right. Q. And when you use the hammer, the hollow sound that you get from rotten timber will be detected — A. That's right. Q. — as against solid? A. Right." It is true that the owner of premises is not required to tear out portions of his structure merely to inspect them where he has no reason to believe that they may be defective. See Coradi v. Sterling Oil Company, 378 Pa. 68, 70, 71, 105 A. 2d 98; Miller v. Hickey, supra, 368 Pa. 317, 81 A. 2d 910; Bechtel v. Franklin Trust Company, 120 Pa. Superior Ct. 587, 591, 182 A. 800. But the duty of reasonable care and diligence may in certain circumstances impose something more than a mere cursory observation. It is clear that land owners have a duty to correct or warn business visitors or invitees not only of defects which are obvious or observable but also those discoverable by a proper or reasonable inspection. Miller v. Hickey, supra, 368 Pa. 317, 325, 81 A. 2d 910; Coradi v. Sterling Oil Company,
The court below, in an opinion by Judge Eagen, has given the following clear and concise summation:
“It is true that the defect was not too obvious and not readily observable by a casual or general observation of the porch. However, this porch and staircase leading thereto were daily used by many customers of the defendants for the latters’ gain and in many instances packages of great weight were carried over*186 them. They were openly exposed to the natural elements the year around. Through their seven years of ownership and use, never once did the defendants make even a casual or superficial inspection to ascertain if they were safe. Whether or not this was an exercise of reasonable care was for the jury to resolve.”
Judgments are affirmed.
The testimony as to the thickness of the beams is conflicting.
The pictures in evidence indicated a structure obviously unsubstantial for the use to which it was subjected.