Phillips v. Rosenberg

Opinion by

Mb. Justice Musmanno,

Anthony Gaudio,. truck driver, daily patrolled the Pennsylvania Turnpike looking for disabled automobiles to offer to their drivers the repair or towing facilities of his employer, Louis Rosenberg, individually and trading and doing business as Rosenberg Auto Parts Company. During weekends and holidays, business was brisk because of the strange but unhappily true association between festive day and automobile wrecks, but on other days Gaudio traveled the highway in monotony and loneliness. To overcome the tedium of this solitary vigil, he adopted the practice of taking along as passenger some member of his family. He would also pick up soldiers thumbing a ride home or to camp. Sometimes, and as often as four times a week, friends would accompany him. He explained that by having companions, “you at least had some conversation to keep you occupied.”

On August 27, 1957, he had for his companion of the day his nine-year-old cousin, Jimmy Phillips, who was injured in an accident which is the subject of this litigation. The boy’s parents, in the boy’s behalf and in their own right, brought suit in trespass against Louis Rosenberg. The action resulted in a compulsory non-suit. On refusal of a court en banc to lift the nonsuit, the plaintiffs appealed.

Resolving all conflicts in the testimony, and inferences arising therefrom, in favor of the plaintiffs, as we are required to do in considering the matter of a nonsuit, the accident happened in the following wise.

On the morning of August 27, 1957, at about 8 o’clock Gaudio picked up Jimmy at his home, and the boy remained with him all morning as he from time to time stopped to render aid to stranded automobiles, restoring life to dead motors and giving mobility to wheels which had refused to turn. At noontime he took Jimmy to a wayside restaurant and then, having lunched, they set off to look at a disabled Buick which had been abandoned at a point close to the Gateway Interchange in Beaver County. Since this wreck was beyond immediate repair, Gaudio prepared to tow it to his employer’s repair shop. He told Jimmy to get out of the truck and stand close to the wrecked Buick to advise him as he backed toward the front of the car. At the trial Gaudio testified that he instructed Jimmy: “I am going to back up to this Buick there, and you holler out when I am close to the bumper so I won’t have to get in the truck myself two or three times and try to back up and hit the bumper . . . Let me know when this plate touches the bumper.”

Jimmy complied with instructions and “hollered” to his “Uncle Tony” to stop at the appropriate time. Gaudio then dismounted from the cab of the truck and got under the front of the Buick to attach the lifting chains which were controlled from the crane in the body of his own truck. While he was doing this, Jimmy got back into the truck and put on a pair of red canvas gloves he found in the cab. He then took up a position beside the tripod from which suspended the pulley through which the steel cable passed during the operation of the lifting apparatus.

He had his right hand on the cable as he watched Gaudio working at the Buick. He was in full view of Gaudio who, having now attached the chain to the disabled Buick, advanced to the towing truck and pulled the lever which threw the lifting mechanism into gear. The cable at once began to rise rapidly toward the pulley. Jimmy’s hand went with it and jammed into the pulley, and in an instant Jimmy’s thumb was torn from the rest of his hand. He cried out: “Uncle Tony, my thumb!” Gaudio leaped to throw the machine out of gear, but in the meantime the boy had not only lost Ms thumb but suffered other injuries. He was taken to a hospital by ambulance.

The lower court, in entering a compulsory nonsuit, pronounced Jimmy Phillips a trespasser and, therefore, not entitled from Gaudio to the care which otherwise would be the norm expected of any person handling a dangerous instrumentality in the presence of others. But Jimmy’s status, as he rode with Gaudio and then cooperated with him at the scene of the accident, was not so definitely fixed by testimony that the court could declare as a matter of law that he was a trespasser. And even if Jimmy were a trespasser, he would still have the right to press for a verdict if he could show that Gaudio’s conduct Avas such as to come within the rule of responsibility for wilful and wanton misconduct.

In the case of Slother v. Jaffe, 356 Pa. 238, 243, the trial court entered a nonsuit against the plaintiff who had been a rider on the defendant’s truck under circumstances ' which questioned his right to be on the truck. This Court reversed the nonsuit and sent the case back for a new trial, Mr. Justice Linn stating: “It may be that plaintiff will produce evidence from which the jury may find that the driver had implied authority to invite plaintiff to ride on the truck. If that shall appear to have been the fact, the defendant’s liability for the driver’s negligence Avill follow on familiar principles. On the other hand if no authority to bind the defendant is shown and the jury finds the plaintiff to have been a trespasser injured by the driver’s wanton misconduct in the management of the truck after plaintiff’s protest, another question Avill arise.”

In the case at bar, the status of Jimmy in relationship to the defendant was strictly one of fact. It is not enough to say, as the trial court said: “In the testimony there is no evidence of authority from defendant to transport others in the track, except those with whom defendant was doing business. There ai»e no circumstances which might warrant an implied authority by acquiescence. We conclude that minor plaintiff was a trespasser as to defendant.”

It was not necessary, in order to prove that Jimmy was legally on the track, that the defendant had given specific authority to Gaudio to take his cousin on the ride with him. The lonely nature of Gaudio’s work invited companionship. The jury could infer from the circumstances that the defendant knew this. Gaudio freely admitted that he transported relatives, friends and soldiers who asked for a lift. The defendant’s firm was not so large and its operations not so extensive that the practices of his five or six drivers would not become a matter of common knowledge to those handling the affairs of the concern for him.

The lower court said: “In that evidence there is no indication that defendant knew or should have known of the presence of the boy.”

But liability would not have to be predicated on actual knowledge by the defendant (we presume the lower court means Louis Rosenberg himself) of Jimmy’s presence on the Gaudio track. Nor would an order given by the defendant firm to its employees not to ride extraneous passengers exclude liability if there is evidence that the order was not adhered to and that by continuing non-fulfillment it actually became a dead letter.

The evidence shows that Gaudio’s immediate superiors in his work were Joe Bushless, the shop foreman of the firm, and Morry Flam, who was in charge of the repair work done on disabled cars. Both these men knew that Gaudio hauled riders. Gaudio testified: “Q. Did Mr. Flam, to your knowledge, ever see any of the people you brought down there in your tow truck? A. He would walk out to the tow truck.”

Gaudio said further that sometimes when he had “kids” on his truck, Mr. Flam would ask him to take the children to the bus station or train station: “. . . sometimes, if it-was late or they had a few kids and there was nobody there at the garage to take them to the Brodhead Hotel or to the bus station or train station, Mr. Flam would ask us if we would take five minutes and run down that way and then go out to the Turnpike. Q. Mr. Flam would ask you to run them down to the hotel or train station? A. If we weren’t busy and there was nobody in the garage to do it.”

While Gaudio and Jimmy were having lunch in the restaurant the day of the accident Joe Bushless saw them and he asked Gaudio as to the identity of the boy. Gaudio told him the boy was his little cousin. Bushless then replied: “Well, that is pretty good; at least he would be out of his mother’s hair and give him something new to talk about and keep you company a little bit.”

The lower court quotes from Hughes v. Murdock Storage and Transfer Co., 269 Pa. 222, where a boy was injured while alighting from the defendant’s truck. Justice Kepi-iart, writing for the Court, said: “To sustain a recovery, under these circumstances, it should appear that the act of the driver in permitting the boy to ride, was fairly within the scope of his employment. ... If he so acted, the master owed a duty through his agent to see that no negligent act should happen that might injure the invitee. The test is not that when the invitation was given, he was engaged in the course of his employment in his master’s business, but was the invitation or its consequences in furtherance of the master’s business, so that it might be said to be impliedly within Ms authority?”

There can be no doubt that Gaudio was engaged in an operation strictly within the course of his employment when he was working on the abandoned Buick, and the jury could find that, slight as Jimmy’s participation in that work may have been, he actually did contribute something to the operation. It will be recalled that G audio testified that if Jimmy were not on the ground telling him when his truck was coming into contact with the front of the Buick, Claudio would have had to get out of Ms truck two or three times.

An act done for one’s employer does not have to extend over any long period of time in order to qualify as “course of employment.” A railroad watchman who stands at a crossing and waves his lantern only once during the night is in the full course of his employment at the time of the waving. And if at that moment something should happen to his lantern and he asked for and received assistance from a stranger, and the stranger were injured, it certainly could not be argued successfully that the stranger’s injuries occurred outside the course of the watchman’s employment.

In Straiton v. Rosinsky, 183 Pa. Superior Ct. 545, a theater usher injured a patron when he struck Mm over the head with a flashlight. In the ensuing suit against the theater owner it was argued on behalf of the defendant that the usher’s act was wholly beyond the scope of his employment and, therefore, there could be no respondeat superior. The Superior Court quoted the general rule that “A master is liable for the tortious acts of his servant done in the course of his employment and within the general scope of his authority,” and then pointed out that “whether the particular act is within the scope of employment ordinarily presents a question of fact for the jury.” The Court held that the litigated case had to be governed by the general rule: “The usher’s conduct in the situation under consideration was not so ‘shocking and a gross abuse of all authority’, his use of force was not ‘so excessive and dangerous, totally without responsibility or reason’, . . . that appellant should be relieved of liability as a matter of law.”

If, on the retrial of this case, the jury finds that Jimmy was not a trespasser but an invitee, the defendant’s liability, as stated in Slother v. Jaffe, supra, “will follow on familiar principles.” If, however, they find that Jimmy was a trespasser, the question then still remains whether Gaudio’s act in throwing the lever which set the cable in motion, when Jimmy was in his full view did not constitute misconduct of a wilful and wanton nature which would still make the defendant liable.

In Peden v. Baltimore & Ohio R.R. Co., 324 Pa. 444, 447, two boys were injured by a locomotive. In sustaining a verdict returned in their favor, this Court held that although the children were trespassers, they were entitled to be protected from wilful and wanton negligence on the part of the railroad employees. The locomotive engineer involved in the accident has testified that he looked ahead but did not see the boys. This Court, speaking through Justice (later Chief Justice) Steen, said: “The jury did not have to accept Gravely’s statement that he did not see the boys, because it is a well settled principle of law based on ordinary human experience that ‘one cannot be heard to say that he looked and did not see when the facts show he must have seen’ ... In other words, while it is not sufficient to prove that defendant’s employee could have seen had he looked, the inference may be drawn, and is indeed inescapable, that he did in fact see if he admits that he did look and if from the other testimony it appears that looking enabled him to see. As the train in the present case was moving upgrade along the spur track at only five miles an hour, it was for the jury to say whether or not there was time to stop it under the circumstances.”

In the case at bar Gandió was only two feet away from Jimmy when he pulled the levers. He said, he didn’t see the boy, but, in the face of the physical facts, the jury could refuse to accept Ms explanation: “Q. And at that time, did you happen to notice little Jimmy at all? A. No, sir. I was facing right where he was standing, but I just didn’t see him.” ... Q. At the time when you pulled the lever and started the cable to go up, where were you looldng? A. Right about where — right at little Jimmy there, standing in the truck. Q. Did you notice him? A. I didn’t see Mm . . . Q. Was there any type of a wall between you and Jimmy at that time? A. No, sir. Q. Approximately how far apart were you at that time? A. About two feet.”

The judgment of the court below is reversed and a new trial ordered.