186 Pa. Super. 585 | Pa. Super. Ct. | 1958
Opinion by
This appeal is from a refusal of a motion for judgment n.o.v. after verdict was rendered in favor of plaintiff, Ten Ten Chestnut Street Corporation in a trespass action.
Plaintiff brought an action of trespass against Quaker State Coca-Cola Bottling Company for damages to its building caused, primarily, by water damage as a result of a fire which was caused by an allegedly defective part in a coca-cola vending machine owned and maintained on the premises of the plaintiff. At the trial, damages were stipulated in the amount of f4,821.07, and the only question raised on this appeal is whether, under all the circumstances, the appellant was negligent in the care and maintenance of said machine.
Plaintiff was the owner of an industrial building-located at 1010 Chestnut Street in the city of Allentown, which was occupied by various tenants. The fourth floor of said building, where the vending machine was installed, was occupied by Penn Sportswear. Defendant is engaged primarily in the business of bottling and selling coca-cola beverage but also installs and maintains refrigerating and vending machines for the dispensing of said beverage. As a result of an arrangement ivith Penn SportSAvear, defendant installed such machine in September, 1950 and placed said machine, to meet the convenience of the tenant, with its back tAvo to three inches from a Avooden partition. This partition extended just above the height of the vending machine itself.
The machine is a rectangular metal box. The upper portion contained the coca-cola bottles, a dispensing apparatus operated by coins, a cooling refrigerant and a motor to operate the dispensing device. The bottom half housed the compressor Avhich contained the
On the morning of May 10, 1954, an employee of Penn Sportswear detected an odor resembling that of burning rubber which apparently emanated from the vending machine. He disconnected the machine from the electrical outlet and then called the service department of defendant. Defendant’s employee, Alfred Mondschein, arrived on the premises at about 1:45 P.M. on the same day for the purpose of making such repairs as might be required. He opened the machine, took out the compressor unit which contained the motor, starting relay and cooling coils and examined them. After connecting the current to the machine, it still did not operate. He then jiggled the starting unit, the relay points contacted and the machine went into operation. Concluding that the floating points in the starter relay were not functioning properly, he removed them and substituted new ones. He then replaced the unit, inspected the motor, checked for leaks, checked the freon gas for pressure, checked the drain pan for oil and checked the supply of electricity in the connecting lines. He remained on the premises about a half-hour in observing the operation of the machine and then left. The machine operated in an apparently satisfactory condition for approximately the next two hours, to the time of closing of Penn Sportswear which was about 4:15 or 4:30 p.m.
Since there were no eyewitnesses to the fire, plaintiff depended for its proof of the origin and cause of the fire upon the testimony of four expert witnesses. It was admitted that the machine was under the exclusive control of the defendant and its care and maintenance were solely its responsibility. Plaintiff’s testimony established that the fire originated in the lower portion of the vending machine known as the compressor area and was caused by a loose connection or loose contact pressure in the plug attached to the starting switch. Captain F. R. Bear, who had twenty years service with the fire department, testified that he was the first to reach the scene following the fire and that as a result of an examination and facts he found, he concluded that the origin of the fire was in the lower section of the vending machine. It was he who checked for any possible power failure to determine whether a shorting in the electrical system outside of the machine
As against this testimony, defendant produced Dr. Bewley, dean of the School of Engineering at Lehigh University, who testified that he examined the machine and performed various experiments to determine what, if anything could have caused the fire, and concluded that the fire could not have originated in the machine but from the outside. He did state, however, that he had no idea what caused the fire externally. He further stated that the freon gas he tested was not oil contaminated. The undisputed evidence disclosed that one-half pint of oil was consumed in the fire and that there was oil throughout the condensing area.
The sole question raised on this appeal is whether, under the facts as stated, the case should have been submitted to the jury and, having been submitted and a verdict returned in favor of plaintiff, whether a judgment n.o.v. should have been entered.
Having established that the fire originated in the machine, plaintiff had the right to have the question of defendant’s negligence submitted to the jury. Mack v. Reading Co. 377 Pa. 135, 103 A. 2d 749. There is no complaint as to the manner of submitting this case to the jury nor to the charge itself. Appellant simply contends that under the exclusive control doctrine, defendant having produced evidence to show that the repairs were done in a careful manner and that the machine thereafter operated in the normal manner, the case should not have been submitted at all. However, this contention overlooks the fact that the serviceman failed to consider the smoke and smell of burning rubber when he did inspect the machine and that he started the machine by jiggling the starter. Had he given consideration to these factors, it is entirely possible that the defect, which later developed, might have been discovered and remedied.
In Miller v. Hickey, 368 Pa. 317, 81 A. 2d 910, the Supreme Court, in determining whether the doctrine
The jury, therefore, was properly called upon to decide whether the fire was such as in the ordinary course of human experience would not have happened had proper care been exercised to prevent it. It was for the jury to determine whether or not the defendant
We have examined the cases cited by appellant in support of its position and conclude that they are inapplicable to the facts of the instant case. They do not involve the doctrine of exclusive control and those which touch on this subject support our view. We find no error in the disposition made by the court below.
Judgment is affirmed.