invitee fell into unlighted grease pit on premises
How later courts described this case
- invitee fell into unlighted grease pit on premises
Written by the judges who cited it.
The opinion
ÜN PETITION TO BeHEAR.
McAMIS, J.
Tbe petition to rebear is, in tbe main, a re-argument in tbe light of our former opinion.
It seems to us that petitioner misconceives tbe basis of our bolding. We made no attempt to draw a geographical fine dividing tbe lot into two parts, one covered and tbe other not as petitioner’s counsel seem to assume. We did point out that tbe grease pit was not on tbe parking lot but only by way of emphasizing that it was not maintained in connection with that excepted operation.
We said: ‘'It would not be a question of what caused tbe injured person to come upon tbe premises but a question of whether tbe act or condition causing , tbe injury arose out of tbe maintenance of tbe premises or tbe prosecution of tbe business.” By this we meant tbe filling station business, as we think other portions of tbe opinion make clear. There would have been no injury and no suit to defend bad there been no grease pit and there would have been none except for tbe operation of tbe filling station business, tbe activity covered by tbe policy.
Suppose Mrs. Shoick bad parked in tbe street with no intention of ever using the parking lot and bad come upon tbe premises of insured for some entirely different purpose but without becoming a trespasser and bad fallen into tbe pit. Defendant would certainly be liable under tbe policy for insured’s negligence because tbe pit was there to be used in connection with tbe filling station business. Tbe fact that in this instance she happened to be a customer of tbe parking lot cannot alter tbe case. *8 The question is: Did the cause of the injury, the negligent maintenance of the pit, arise out of and in connection with the insured pursuit? To consider what caused the injured person to place himself in a position to he injured merely confuses and, in our opinion, is to beg the question.
As illustrating a case of non-liability, suppose Mrs. Shoick had been run down by one of insured’s employees while shifting cars on the parking lot. No liability would attach in such a case because the injury would be one arising out of the operation of the parking lot. It would make no difference if she had been in the filling station to use the telephone or to pay for gasoline and was struck while still on that part of the lot used by the filling station though in the act of returning to her car on the parking lot.
For the reasons indicated we must adhere to our former opinion and deny the petition with costs.
Hale, J., and Brown, Sp. J., concur.