384 Pa. 209 | Pa. | 1956
Opinion by
In this action of trespass defendant appeals from the refusal of its motion for judgment n.o.v., based'on plaintiff’s contributory negligence, and of its motion for new trial, founded on the claim that its negligence .was not established and that the verdict was excessive.
The verdict of the jury established the following facts:
Plaintiff was a truck driver for the Pioneer Salt Company. As such, he delivered to defendant carboys containing sulphuric acid, and also collected them, when empty, for return to his employer. Defendant was one to which such material and service were supplied. Plaintiff had been so engaged for a period of approximately one year prior to the occurrence leading to his injuries. On this day he and his helper had delivered supplies to defendant, at which time he was directed by defendant’s employe to pick up anil return to his employer some “empty” carboys which were stored outside the building but, because of their hazardous contents, within a fenced enclosure.
The carboys were 20-gallon glass bottles, approximately 3 feet high and 2 feet in diameter, each encased
Plaintiff’s expenses were $326:57, and his verdict was $5000. However, much of the treatment, through medicinal applications to the injuries as well as attention, was given him by his wife. This necessarily reduced his expenses.
Defendant first contends that plaintiff was guilty of contributory negligence as a matter of law, on the theory that he acted only on the Word of defendant’s employe, and failed to make his own tests to determine whether the carboys were empty. But, as he testified, and everyone knows, it is not to be expected that one will test the presence of sulphuric acid in a bottle by looking into it or smelling it, — as defendant contends he should have done. Plaintiff had no reason to believe there was acid in the bottles, except for the fact that they were heavier than usual. But since the crates were wet, and he received the twice-stated assurance from defendant’s employe that they were empty, we
Nor can it be said that the proof was insufficient to establish defendant’s negligence. Its employe’s assurances that the carboys were empty were within the scope of his employment (Heyse v. The Philadelphia Electric Co., supra), and the jury was warranted in finding that he made a misrepresentation, upon which plaintiff relied, which tended to induce plaintiff to do just what he did, that it involved an unreasonable risk of /bodily harm, and that the employe either knew that it was false or did not have the knowledge he professed to have. For this, defendant is liable: Heyse v. Philadelphia Electric Co., supra; Restatement, Torts, §310.
Nor can we hold that the verdict was excessive. Plaintiff suffered deep and most painful burns which, left permanent scars on his face. He also suffered the attendant shock and pain which come with such injuries. As pointed out, in addition to hospital and
Judgment affirmed.