Defendant appeals from the judgment entered on a verdict for the plaintiff after the lower court denied its motion for judgment n.o.v. and for a new trial.
The facts, viewed in the light most favorable to the verdict-winner, establish that on March 8, 1962, the 21 year-old plaintiff was injured when she fell through an opening left by a missing plank in the walkway of a railroad bridge owned and maintained by the defendant. The bridge, one of three in the vicinity, had been used by pedestrians in the area to cross Chartiers Creek for about thirty years without objection from the defendant. It was between 40 and 50 feet long, was of steel frame construction and contained one set of tracks. On each side of the tracks was a three or four foot wide walkway of wooden planks, laid parallel to the tracks with a wooden railing at the edge of the walkway. The planks were two inches by ten inches and were between six and twelve feet long. A plank had been missing for about three weeks before the accident and freight trains passed over the bridge several times a day.
On the date of the fall, the weather was clear but there was three or four inches of snow on the ground. Plaintiff testified that she didn't see the hole left by the missing plank because the snow was "smoothed out, and it was like hanging over. You couldn't notice the hole or anything like that." Another witness testified that "the snow and soot had blended the bridge and the plank together, and you wouldn't know that there was a missing plank. . ." Plaintiff fell through the opening about fifteen feet to the creek bed below and sustained a broken ankle. Defendant offered no testimony at trial. The jury returned a $7,000 verdict for the plaintiff.
We are persuaded that under the law of Pennsylvania as it now exists defendant's request for a compulsory nonsuit should have been granted.
As a trespasser, plaintiff would have us adopt Section 335 of the Restatement of Torts and consider the testimony in light of the standard of care suggested there. To do so, we would have to ignore the decisions of our Supreme Court defining the duty owed to a trespasser. This we cannot do. Our Supreme Court has said that the only duty owed to a trespasser by a property
Judgment reversed and judgment non obstante veredicto entered for the defendant.
WATKINS, J., dissents.