*1 Appellants. Dinio v. Goshorn et al., *2 Before C. March 1969. J., Argued 19, Jones, Bell, Egberts and JJ. Pomeroy, Eagen, O’Brien, Cohen, him Costello <& with Snyder, J. Snyder, Dcmiel appellants. Daniel, Edwards, him R. with Belden, Reginald
H. ap- Sensenich & Hеrrington, Belden, Stewart, pellant. R. Ceraso, him Thomas Scales,
C.A. for appellee. Ceraso, & Lyons Shaw, Scales, December Opinion O’Brien, Mr. Justice 1969: Mar- employed by apрellee, Dinio, J.
Albert G. and John Check, oper- Jr., Sterbak Check garet Co. While in of John G. Check Furniture ators appel- on October 23, 1961, course his employment, of side- personal injuries lee a section suffered when he which a ladder on way leg walk under gave marquee engagеd cleaning while standing of the Check store. been in such fashion placed
The ladder had plugs one of its was between two water legs plugs The concrete between two water sidewalk. these into un- dropped broke and the broken cement a hole der the sidewalk.
Appellee brought Wright suit Gertrude M. leased and Eva W. the owners Harper, Check for the conduct of Au- and the business, operator thority Borough Charlеroi, municipal system. prop- Subsequently, caused the Checks and erty Company the Check *3 to be as additional defendants. joined of the the
During pendency Wright Gertrude action, died and the administrator of her W. estate, George was substituted as a defendant. A Goshorn, party jury in verdict for appellee trial resulted prop- a the аnd the and in favor ad- erty Authority, of the defendant appeal ditional lessees. This the followed motion of the denial new trial filed the by the mоtions new trial owners, and judgment n.o.v. filed the and the by Authority, of entry judgment on of the jury. the verdict
Our review of the record in this case leads us the view of thе agree evidence adopted the below. That court said: court principal question “The in involved this case was condition of thе as to the sidewalk concrete which col- lapsed. Testimony was offered by parties all on the of of part this the condition sidewаlk and this testi- factual presented many questions mony for the consid- of the on the Based jury. testimony, jury eration properly could have found thаt of the side- the surface appeared weight, in but walk a condition to hold able depression portion large that a underlie [sic] сaps. jury the sidewalk between the water could properly plaintiff have found from evidence that contributory negligent failing was not in to disсover this condition and not barred either the doc- contributory negligence assumption trines of of the placing risk in his actions ladder on сon- jury properly crete. The also could have concluded the company responsible by of its the actions employees creating question very in condition in due to their work on this concrete area.”
Appellants Harper argue they, Goshorn and as liability. рossession, landlords out of could have no sup- submits that the evidence not does port finding negligence against a it; that, liability secondary event, is to that of the owner contributorily neg- tenant; and that Dinio was and/or ligent appellants or had assumed the risk. All the al- complain reаding so that the court trial erred in to the jury allegations negligence contained in Dinio’s complaint. disapprove
Initially, practice reading we of the complaint allegations part jury of the to the as a portions charge. pleadings of the Where of the are properly may the rule be but evidence, otherwise, as not is where, here, should case, courts allegations part charge. not rеad the as This particularly so as where, the trial court here, did jury deny to the indicate that answers had been filed *4 allegations ing negligence. the The court did indi plaintiff, the cate that contentions were those of the explanation grave danger further but without there is jury give weight will that the undue to the contentions, coming, they part judge from as do, the as of his Hershey, charge. 163 v. Pa. Reese Cf. 29 253, Atl. 907 228 74 Pa. 419, 225 Rys. Co., v. York Hollinger
(1894); that indicates (1909). rеcord, however, Atl. 344 had re the jury not until after was raised the issue at the raised not question tired to deliberate. ashed judge trial of the the chаrge when conclusion at which or omission, for of error suggestions counsel We do error. corrected the court could have time thе fundamental and the error to be so basic conceive not have not parties trial where the a new require as to the correct in time the court to it to allow raised impression charge the created. possible erroneous we con- Authority, to the other arguments As plaintiff’s that without merit. The they clude are a had jury based on this record, theory, which, on its places to accept, liability right fill beneath con- negligence failing to active own repairs installed it connection with crete In pri- the issue of plugs. circumstances, and does not arise. mary secondary liability Moreover, factual issues of negligence, contributory negli- assumption risk of the tried gence fully were comports the verdict evidence.
The case
Goshorn and Harper, however,
on a
In
footing.
stands
different
that
concluding
of possession
out
could
landlords
be held
liable,
placed
court below
heavy reliance on McLaughlin v.
230 Pa.
The Check Furniture Co. had been in occupan- sole premises since cy the last lease renewal рlace taken 8 months having some before the accident. no that There is evidence owners knew should or for matter known, have cоuld have known, in the sidewalk caused defect by a failure of prop- It Authority. er filling is clear that a land- generally possession lord out liable bodily
229 those the lessee harm on his sustained Ryan, right. Craig premises v. under the lessee’s on the (1963) Superior 191 A. 2d 201 Pa. Ct. 307, nothing to record in this cited therein. Therе is cases retained over indicate that the control premises occurred. on which the accident
Exceptions general rulе. In those do exist to leasing, the land- instances at the time where, lord or reason to of a he can- has knows, know, defect, escape liability. situation in Mc- Such was the supra. Laughlin, supra, In the defect was such Greco, in- that spection. it could have been discovered rеasonable In the at case there is no evidence bar, landlords should could have discovered de- by any inspection, fect eithеr or after mak- before ing gen- In the last lease. circumstances, nonliability possession eral rule of out of landlords applies. judgment against Borough appealed from at No. Charleroi, 58 March Term, is affirmed. judgment against George N. Adminis Goshorn,
trator of the Wright, Estate of Gertrude M. аnd Eva appealed Harper, W. from at No. 53 March Term, 1969, granted.1 is reversed and a new Mr. Justice Jones dissents.
Dissenting Opinion by Mb. Chief Justice Bell: judgment grаnted I believe that n.o.v. should be George namely, the landlords, W. Adminis- Goshorn, Wright, trator for the Estate Gertrude and Eva W. possession Harper, out of who were and had no knowl- edge of the defective sidewalk. grant judgment no n.o.v. We because no such motion was
filed.