277 Pa. 567 | Pa. | 1923
Opinion by
Wilbert Burkett, aged seventeen, while walking northward on Eleventh Street, Philadelphia, -was struck on the head by a piece of wooden railing that fell from a balcony on the fourth floor of the Colonial Apartments. This appeal was taken by defendant from the judgment
It will serve no useful purpose to review extensively the facts on which plaintiff relies to sustain the judgment. The condition of the woodwork on the fifth floor balcony and the work to be done there was properly admitted in evidence under counsel’s statement. It was material in determining the relation -to appellant of Callahan, the contractor repairing the balcony. Counsel stated he would connect the evidence with the condition of the balcony on the fourth floor and the work to be done there. No effort thereafter was made to connect the two balconies in one undertaking, but, as stated, the evidence was properly admitted, as it was then only a question of the order of proof. Defendant’s counsel, at the close of the case, should have renewed his objection to the evidence by a motion to strike out; had this been refused, we might give the assignment more serious consideration. The trial judge is not required to carry in his mind the details of the trial, and of his own motion strike out evidence; the objection is not well taken.
Appellant urges plaintiff’s action was not based on the theory that Callahan (the contractor) and his employees were servants of defendant, — that the statement of claim does not attempt to hold defendant responsible for any negligence of Callahan or his employees. Notwithstanding this, the trial judge devoted much of his charge to the legal distinction between an independent contractor and servant, instructing the jury to determine whether Callahan was an independent contractor or servant. Thus was injected into the case something not alleged in the pleadings, nor proven in the case.
The difficulty with this phase of the case is, plaintiff did not designate any specific persons as servants of the defendant for whose neglect he was responsible. The statement averred many separate and independent acts of negligence, for all of which defendant was charged with responsibility. The thirteenth paragraph of the
If the statement did not specifically set up the challenged matter, that Callahan was a servant, defendant nowhere objected to the evidence tending to show he was such servant. If there was any variance between proof and allegation, it is now too late to raise it: Minute v. P. & R. Ry. Co., 264 Pa. 93, 97; Gallagher v. American Bitumastic Enamel Co., 273 Pa. 314, 316. We are not disposed to hold the evidence admitted under the general charge in the statement, that plaintiff was injured through the act of the servant, could be considered a variance without request for a more precise description of servant. Defendant’s points show the case was tried on the theory of independent contractor.
We have carefully read the court’s instruction on this branch of the case. While somewhat lengthy, as a whole it was not sq much out of harmony with adjudicated cases as to constitute reversible error or prejudice defendant’s rights. There may be excerpts which, standing alone, might be objectionable, but, read with the entire context, it is quite clear the court meant to lay emphasis on the fact that the important and decisive question was whether or not the defendant had authority to direct the contractor’s workmen as to the manner or methods of executing the details of the work. The suggestion that the jury might conclude to regard the element of discharge as being decisive of the question of employment is not without authority: 14 R. C. L. page 71, section 8; Dickson v. Hollister, 123 Pa. 421, 430 (see also Simonton v. Morton, 275 Pa. 562). But the weight of author
We need not decide whether there was sufficient evidence to show Callahan as an independent contractor, but we will pass to the remaining question, on which we are all agreed that the circumstances connected with it are sufficient to sustain the judgment, apart from the relations of the parties, as servant or not. When defendant went to Callahan’s place of business he inquired for a workman of a particular name (Zutterling) to do some work for him. This man was instructed to go to the Colonial Apartments, where Baker, defendant’s manager, would point out the work to be done. He was to do whatever the manager “shows him or tells him to do.” There was also engaged at the apartments, under the direct employment of defendant, a carpenter, whose assistance was necessary to Callahan’s work in relaying tin on the balcony floors. It is conceded the house carpenter did assist in the work, and it is in evidence he actively aided on this balcony at the time the accident took place. Immediately before, and coincident with, the accident, the house carpenter was holding and working with the piece of wood or banister that fell to the pavement, injuring the boy. This object was in the hands and under the control of two men, defendant’s own carpenter and Peterson, another employee of Callahan. That the acci
Judgment affirmed.