Powell v. Wilhelm

Citations

• 49 Pa. Super. 268
• 1912 Pa. Super. LEXIS 319

Syllabus

<p>Negligence — Hole in sidewalk — Sidewalk—Delivery of leer.</p> <p>1. In an action against a brewing company to recover damages for personal injuries from a fall through a hole in a sidewalk, a verdict and judgment for plaintiff will be sustained, where the evidence shows that the defendant directed one of their drivers to deliver a barrel of beer to a hotel keeper by placing the same in an ice box in the cellar of the hotel through a coal hole in the sidewalk in front of the hotel, and that the driver opened the coal hole, left it unguarded for about four minutes, and while he was in the cellar storing the beer in the ice box, the plaintiff, a pedestrian, without negligence fell into the hole, and was injured.</p> <p>2. In such a case where the evidence for plaintiff shows that the accident happened about eight o’clock in the evening, that the sidewalk was crowded, and that the immediate locality of the hole was somewhat dark, the question of the plaintiff’s contributory negligence is for the jury. If the evidence is conflicting as to whether the plaintiff was intoxicated or not, this question is also for the jury.</p> <p>3. In such a case the court cannot say as a matter of law that the act of the driver was outside the line of his employment, where it appears from the testimony of one of the defendants that the driver was instructed by his employers to put the beer in the cellar through the hole in the sidewalk.</p>