Appeal, No. 4, Jan. T., 1948, from order of C. P., Lackawanna Co., March T., 1946, No. 397, in case of Stanley Ambrose v. Moffat Coal Company et al. Order affirmed.

Trespass for personal injuries.

The facts are stated in the opinion, by HOBAN, J., of the court below as follows:

Action in trespass for personal injuries resulting from a fall on a roadway over premises leased by Glen Alden Coal Company to Moffat Coal Company and in full possession of Moffat Coal Company. At the opening of the trial, on motion by the Counsel for Glen Alden Coal Company, that defendant was dismissed, for reason that it was not a proper party defendant, the trial proceeding against Moffat Coal Company alone. At the end of plaintiff's case in chief, a compulsory nonsuit was entered. The motion now before us is to take off the nonsuit and to award a new trial.

Reading the testimony in the light most favorable to the plaintiff, the facts are as follows:

The plaintiff lives in the Borough of Taylor and Moffat Coal Company operates the Pyne Colliery in the same Borough. Plaintiff worked in the colliery at an underground job and was so employed by the Moffat Coal Company for fifteen years or more. Plaintiff lived in the Borough of Taylor for thirty-three years. The plaintiff was accustomed to walk to work daily from his home in Taylor, his route taking him to the end of Union Street in Taylor, then from Union Street along an unimproved dirt road to Keyser Avenue; thence across Keyser Avenue to the premises of the Pyne Colliery. The tract of land traversed by the unimproved dirt road was in possession of the Moffat Coal Company as lessee for upwards of ten years prior to the date of the injury to plaintiff. Some ten years ago a public highway was constructed from the end of Union Street above referred to leading to Keyser Avenue at a point near the Pyne Colliery. The unimproved road prior to the construction of the public road had been in effect an extension of Union Street but was abandoned as a road when the new paved public highway was built. However, the testimony indicates that the unimproved road was habitually used by two to three hundred workers at the Pyne Colliery who lived in Taylor as a short cut to Keyser Avenue, and thence to the Pyne Colliery, the workers preferring that road, first, because it was shorter; secondly, because there was no automobile traffic thereon. Admittedly, the road is a part of the property in possession of the Moffat Coal Company, but is not a part of the premises of the Pyne Colliery in the sense used in the cases interpreting the Workmen's Compensation Act. The plaintiff in common with other workers had used the unimproved road to walk to and from his place of employment and his home, and had continued to use it daily for a long time prior to February 15, 1944, and had traversed the road both in the daytime in full visibility and at early hours in the morning on working days when he went on the early shift.

On the morning of February 15, 1944, plaintiff left his home in Taylor at 5:45 a.m., proceeded to the end of Union Street, thence along the unimproved road toward the Pyne Colliery. Visibility was limited because of darkness at that hour on a winter morning. At a point on the unimproved road about a thousand feet from the end of Union Street plaintiff struck his foot against a stone embedded in the road, described as approximately 4 inches high, 7 inches wide and 6 inches long and firmly embedded in the ground. He fell to the ground and suffered a broken hip and other injuries which subsequently resulted in a considerable shortness of the leg and serious impairment of his physical ability to work. Plaintiff's own testimony indicated that the unimproved road was rough and uneven; that there were many stones here and there in the road; that in his passage over the road in daylight he did not notice this stone particularly but "there were stones there, some of them higher, some of them lower". In his description of the general vicinity with reference to opportunity to notice this stone particularly was the following: "In the daytime when you walked you passed it off, but at night you can't see it."

A brother of the plaintiff, who was called to the scene of the accident, testified that on his passage over the unimproved road he had often noticed this same stone and that the stone was there for a long while.

Plaintiff's theory of liability is that Moffat Coal Company, as possessor of the land by long standing permissive use of the unimproved road to its employes for access to the premises on which they worked, owed a duty to the employes to make the road reasonably safe for passage of such employes, and that whether or not the injury to plaintiff occurred because of violation of this duty is a matter for determination by a jury. It is doubtful whether the status of the plaintiff with reference to the possessor of the land rises above that of a gratuitous licensee, since an improved public highway was opened to the plaintiff for him to travel to his place of employment, but assuming that the plaintiff among other employes had established a permissive use of the road, his status then would be, at the most, that of a business visitor. The general liability of the possessor of land to licensees, whether business visitors or gratuitous licensees, is the same. Section 340, Restatement, Torts, states the general liability. "A possessor of land is not subject to liability to his licensees, whether business visitors or gratuitous licensees, for bodily harm caused to them by any dangerous condition thereon, whether natural or artificial, if they know of the condition and realize the risk involved therein."

By plaintiff's own admission he knew of the condition of the roadway with reference to the various sizes of stones therein, and one must believe that if he was in possession of his faculties, he must have known of the condition of the road and the risk involved in travelling over an uneven road studded with stones, in the darkness. On the general principle expressed in the section above quoted there can be no liability. Even if the condition be considered a dangerous one and known to the possessor, there is no special reason to impose special liability on the possessor; under such circumstances the possessor would have to know that the condition involved a reasonable risk to a business visitor and had no reason to believe that such business visitor would discover the condition or realize the risk involved therein. Section 343, Restatement, Torts. See particularly Comment b. The defendant was not required to anticipate that its employes who travel this same road daily would not be aware of the hazards involved and that they would not govern their own actions in accordance with such hazards.

"No person is required to take extraordinary precautions to save adults in apparent possession of their reasoning faculties from the consequences of their own inattentiveness and carelessness. 20 Ruling Case Law, sec. 101, p. 117, makes this statement: 'Everyone has a right to proceed upon the assumption that those to whom he owes a duty of care are normal in every respect and prepared on their part to exercise the care of prudent person generally.' " Jefferson v. Y.M.C.A., 354 Pa. 563, at p. 567.

We can discover no liability, under the testimony, on the part of Moffat Coal Company to the plaintiff as a business visitor for the injury he sustained.

The principles of the Restatement cited above have been applied with similar effect in several recent cases. See Simmonds v. Penn Fruit Co., 354 Pa. 154; Jefferson v. Y. M. C. A., 354 Pa. 563.

And now, December 20, 1946, the rule to show cause why the compulsory nonsuit heretofore entered in the above entitled case should not be stricken off and new trial awarded is discharged.

Plaintiff appealed.