17 A.2d 652 | Pa. Super. Ct. | 1940
Lead Opinion
Argued October 4, 1940. This is an action by a business visitor against the owner of a building brought to recover damages for personal injuries. The case was submitted to a jury which found a verdict for the plaintiff. The defendant filed a motion for judgment n.o.v. and plaintiff filed a motion for a new trial. Defendant's motion was refused and plaintiff's motion for a new trial was granted on the sole ground that the verdict was inadequate. Defendant has appealed. We are of the opinion that judgment should be entered for the defendant.
The plaintiff, a salesman, was sitting in a waiting room in defendant's place of business, expecting to interview the defendant and sell him goods, when a glass sash in an inside partition fell upon plaintiff's head and injured him. The sash, consisting of a frame and heavy glass weighing about thirty pounds, had been located in the upper portion of a partition which separated the waiting room from a private office.
It is clear that plaintiff was a business visitor or invitee who was on the premises for a purpose connected with his own business and indirectly connected with the business of the defendant: Restatement, Torts, § 332. It follows that the defendant owed to the plaintiff the affirmative duty of keeping his premises reasonably safe for business visitors such as plaintiff and of giving warning of any failure to maintain them in that condition: Kulka v. Nemirovsky,
The unexplained falling of an object is not sufficient to render the defendant liable for negligence: Wolk v. PittsburghHotels Co.,
No one who was present at the time of the accident or who knew the condition of the sash at that time gave any explanation for the falling of the object. One of the plaintiff's witnesses who saw the accident said there was "nothing of any unusual character at all to attract your [his] attention" and that he did not know "what caused the window to fall." To show lack of care on the part of the defendant, plaintiff furnished no proof that the defendant had any knowledge of a defective condition or could have discovered such defects by a reasonable inspection of the sash, but relied solely upon the testimony of Tyler M. Gibbs, a construction engineer, who, three months after the accident, *147 examined the opening in which the window had been and a sash which someone on defendant's premises said was the sash in question. That witness testified that when he examined the location he found the opening was fifty inches in height and thirty inches in width; that the window pivoted on two bolts, one in the top of the frame and the other in the bottom and there were sockets to receive the bolts in the middle of the top and bottom of the sash. At that time the lower bolt was missing but the witness could not say whether it was "torn out or removed or what." He did not testify to any wearing of the parts, rotten wood, ancient construction or any other condition that would account for the fall or would suggest that an inspection would have disclosed a defect. He did testify that he did not find any evidence that there had been a catch to hold the window closed or an arm attached to the frame so that when the sash was open it would remain where placed and then gave his opinion that such contrivances, if they had been present, "would have acted as additional safety device[s]" and that "from a safety standpoint they [the windows] were not safely installed" by reason of the absence of such attachments.
Such evidence is insufficient to charge the owner with negligence and particularly was not sufficient to show that an ordinary and reasonable inspection of the premises would have disclosed any defect that called for action on the part of the defendant. This was a window in a room in the interior of a building with no openings to the outside of the building. It was not subjected to the wind pressure of an exterior window or even of one opening into a hall. The witness found no defect in the construction of the pivots or in their condition. He gave no facts from which it could be inferred that an ordinary and reasonable inspection would have disclosed a wearing away or any other defect. His statement that a catch would have afforded additional protection has little to support it. If the *148 window was closed there would be more pressure on it than if it swung open with a little draft and there was no evidence that any swinging that had taken place had worn or loosened any of the parts. Three months after the accident the bolt was missing but that bolt may have been taken out when a cardboard was placed where the sash had been.
Plaintiff, in fact, does not rely upon defective construction but rather upon failure to attach a so-called safety device. The defendant was not bound to install every conceivable safety device: Jacob v. Pittsburgh,
The orders are reversed and it is directed that judgment be entered for the defendant.
HIRT, J., dissents.
Addendum
The foregoing opinion was prepared by Judge PARKER before his accession to the Supreme Court. It is now adopted and filed as the opinion of the court.
