Opinion
April 14, 1964.
June 11, 1964.
Negligence — Possessor of land — Building rented to multiple tenants — Adjoining alleyway used as a public way — Duty of owner to protect those using it from danger — Steel plate in alleyway over pit.
1. In a trespass action for injuries sustained by the minor plaintiff when a steel plate gave way under him, causing him to fall into a pit in a paved alleyway in front of a doorway of a building owned by defendants A, in which it appeared that the building was rented to multiple tenants, including defendant B; and that the alleyway, although owned by defendants A, was used as a public way; it was Held that (a) by renting to multiple tenants A in effect retained responsibility for the condition of the structure's sidewalk; and (b) by permitting the alleyway next to the building to be used as a public way, they assumed the obligation of reasonable care to protect those using it from danger.
2. Where it appeared that there was evidence that the hinges attached to the plate to secure it to a metal rim were rusty and that A and their caretaker knew this, and that there was also testimony that the hinges were rusted through; that shortly before the accident a truck belonging to C, the additional defendant, went over the plate, knocking it off the pit; and that the truck driver and an employe of B replaced it, but it was bent and did not fit properly; it was Held that, even if the jury concluded that the hinges broke when C's truck or some other truck went over the cover, this would not relieve A from liability if the jury also concluded that the hinges would not have broken except for their rusty condition, that whether or not there was negligence on the part of B or C in replacing the cover was for the jury, and that the verdict acquitting B and C of negligence and holding A solely liable was not without support in the evidence.
3. Where it appeared that plaintiffs' attorney in his argument to the jury suggested that they should value the minor plaintiff's pain and suffering at a dollar per minute; and that the jury were told by the court that this was an improper argument and were charged on a proper measure of damages; it was Held that, although the argument was improper, in view of the testimony of the plaintiffs' witnesses as to the injuries, the verdict was not excessive, and the court's charge corrected any adverse effect upon the jury from the improper argument.
Before ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ. (RHODES, P.J., absent).
Appeal, No. 96, April T., 1964, from judgment of Court of Common Pleas of Beaver County, Dec. T., 1962, No. 190, in case of Lawrence Ruby, a minor, by Sylvia Stariha, his guardian, et al. v. Guerino Casello et al. Judgment affirmed.
Trespass for personal injuries. Before SOHN, P.J.
Verdict for plaintiffs in the sum of $5,000 and against defendants Casello only and judgment entered thereon. Defendants appealed.
Robert L. Orr, with him Reed, Ewing, Orr Reed, for appellants.
John Alan Conte, with him Conte Courtney, for appellees.
Lee E. Whitmire, Jr., with him Whitmire Mannix, for appellee.
Argued April 14, 1964.
Guerino and Jennie Casello, two of the defendants in this case, have appealed from the refusal of the court below to grant their motions for new trial or judgment n.o.v. following verdicts for the plaintiffs against the Casellos alone.
Lawrence Ruby, the minor plaintiff, was injured when a steel plate gave way under him, causing him to fall into a pit in a paved alleyway in front of a doorway of a building owned by the appellants. The building was rented to multiple tenants, including the defendant Royal Tile Co., Inc. The Casellos stipulated that the alleyway, although owned by them, was used as a public way.
By renting to multiple tenants, the Casellos, in effect, retained responsibility for the condition of the structure's sidewalk. Higgins v. Polito, 348 Pa. 152, 34 A.2d 482 (1943). By permitting the alleyway next to the building to be used as a public way, they assumed the obligation of reasonable care to protect those using it from danger. Rachmel v. Clark, 205 Pa. 314, 54 A. 1027 (1903). The question before us is whether there was evidence from which the jury could properly conclude that the Casellos failed to discharge this obligation of care, thereby creating an unreasonable risk of harm to the minor plaintiff. This, in turn, depends upon whether the steel plate over the pit gave way because of a defect resulting from the Casellos' failure to keep it in a safe condition or for some other reason. The pit was rectangular in shape (3 1/2' by 2 1/2' by 3 3/4') and led to the basement of the premises. The steel plate which covered the pit rested upon a flat metal strip or rim, about two and one-half inches wide, around the perimeter of the pit. Two hinges were attached to the plate to secure it to the metal rim. When resting on the rim the plate was level with the surface of the roadway. The measurements of the plate in each direction were three inches less than those of the rim and, consequently, there was a gap of about one and one-half inches between the outer edge of the rim and the edge of the plate.
Shortly before the accident a truck belonging to Sulco Freight, Inc., the additional defendant, went over the plate, knocking it off the pit. The truck driver and an employe of Royal Tile replaced it, but it was bent and did not fit properly. The Casellos argue that the accident resulted from the bending of the plate or its improper replacement by the employes of Royal Tile and Sulco and that there was no proof of negligence on their part.
However, there was evidence that the hinges were rusty and that both the Casellos and Mrs. Heater, their caretaker, knew it. There was also testimony that the hinges were rusted through. Even if the jury concluded that the hinges broke when the Sulco truck or some other truck went over the cover, this would not relieve the Casellos from liability if the jury also concluded that they would not have broken except for their rusted condition. Whether or not there was any negligence on the part of Sulco or Royal Tile in replacing the cover was for the jury. The verdict acquitting them of negligence and holding the Casellos solely responsible was not without support in the evidence. The conflicts in the testimony were for the jury to resolve. Taking the evidence most favorably to the verdict winners ( Anzenberger v. Nickols, 413 Pa. 543, 198 A.2d 309 (1964), we find no reason sufficient to warrant setting aside the jury's verdict.
The appellants also complain that the argument of the plaintiffs' attorney to the jury suggested that they should value the minor plaintiff's pain and suffering at a dollar per minute. Such an argument is of course improper. The jury were, however, told by the court that this was an improper argument and were charged on the proper measures of damages. In view of the testimony of the plaintiffs' witnesses as to the injuries, the verdict was not excessive, and it appears to us that the court's charge corrected any adverse effect upon the jury from the improper argument.
Judgment affirmed.