Opinion by
■ Hugh E. Donnelly, a United States customs inspector, was killed on May 1, 1947, when a 700 pound bale of wool was pushed from the top of a stack of bales and fell On him. At the time he was engaged in weighing and testing wool owned by Fred Whittaker Company (hereinafter called Whittaker) in a warehouse operated by Tidewater Field Warehouses, Inc. (hereinafter called Tidewater). To recover damages suffered as a result of Donnelly’s death, this suit in trespass against Whittaker was brought by Mary Frances Donnelly; decedent’s widow, as administratrix of his estate, on behalf of herself and her two minor chil *389 dren 1 and also on behalf of Donnelly’s estate. 2 Whit-taker brought Tidewater on the record as an additional defendant. The jury returned verdicts against both defendants in the amount of $32,078 in the wrongful death action and $10,400 in the survival action. After motions for judgments n. o. v. and new trial were overruled, judgment was entered on the verdicts and defendants appealed.
Whittaker is engaged in the business of importing and processing raw wool. In order to avoid the necessity of making immediate payment of the import duty, the wool is stored in bonded warehouses subject to the joint control of the warehouseman and the U. S. customs officials. The duty is then paid as the wool is removed. Whittaker, needing a bonded warehouse in the City of Philadelphia and being unable to operate one for its own wool, leased to Tidewater the warehouse building here involved and at the same time entered into a warehouse agreement with Tidewater. By the terms of the agreement, Tidewater agreed to use the warehouse exclusively for the storage of Whittaker’s wool and Whittaker agreed to pay certain storage charges. The agreement further provided that Whit-taker would furnish all labor necessary for the supervision, storage, handling, removal, weighing, packing, delivery and protection of the wool and that “All such labor, when performing said services on the warehouse premises, is to be subject to the exclusive control and supervision of . . . [Tidewater].”
On May 1, 1947, Donnelly went to the warehouse to weigh and sample wool stored there by Whittaker. One William Hartley, who was in the general employ of Whittaker and acted as assistant storekeeper for Tidewater as well, and one John Concannon, also in the *390 general employ of Whittaker, were present to aid in this work. The wool was packed in bales approximately four feet in height, depth, and width and weighing between 650 and 750 pounds. These bales were stored in the warehouse in stacks of four. In order to get the bales down to the floor to be weighed, Concannon would climb up on the stacks and push or rock the top bale until it fell to the floor.
The work began at 9:00 A. M. and from then until the accident occurred Donnelly stood near a scale which was located at one end of the warehouse so that he could check the weights of the bales. Shortly after 3:00 P. M. Concannon pushed over a stack of bales in the vicinity of the scale without any warning being given. Donnelly, who was facing the scale with his back to the falling stack, was struck by one bale which crushed him against another causing his fatal injuries.
Defendants argue that Hartley and Concannon were breaking down the stacks in the usual manner and since plaintiff did not prove a safer way of doing it, no negligence was shown. However, customary methods do not furnish a conclusive test on the question of negligence :
Maize v. Atlantic Ref. Co.
Nor is there any merit in defendants’ contention that Donnelly was guilty of contributory negligence because he failed to take proper precautions for his own safety. He was standing facing the scale, the only position he could assume to carry out his job of weighing the wool. This is not a case where Donnelly moved into a position of danger as defendants contend. He had been in that same place for six hours prior to the accident and both Concannon and Hartley knew that he was there. Under those conditions, Donnelly was not required to anticipate that bales in close proximity to him would be pushed down without any warning. He was in a place where it was necessary for him to be to properly perform his duties. It was not inherently dangerous but became dangerous only because of the negligence of Concannon and Hartley. Certainly, it cannot be said that Donnelly was guilty of contributory negligence because he failed to foresee the negligence of another.
The jury, by its verdict, determined that Concannon and Hartley were the servants of both defendants and that both were, therefore liable. Each defendant argues that as a matter of law the other is solely liable for the negligence of Concannon and Hartley. Tidewater bases its argument on the fact that both men were in the general employ of Whittaker and were doing the work for Whittaker’s benefit. Whittaker, in turn, relies on the warehouse agreement as showing that Tidewater had the exclusive right to control the men working in the warehouse.
It is not questioned that by the terms of the agreement, Whittaker lent its employees to Tidewater. In determining liability for the negligent acts of those employees, the test is whether they continued subject to the control of Whittaker or became subject to the con
*392
trol of Tidewater:
McConnell v. Williams,
In reaching this conclusion we are not unmindful that in Paragraph 9 of the warehouse agreement, Whit-taker agreed to indemnify Tidewater against any “claims, demands, actions or causes of actions of any kind or nature. . . .” Tidewater’s right to indemnity must be determined in an action on the contract and cannot be adjudicated in this trespass suit. See
Volta v. Markovitz Bros., Inc., et al.,
Whittaker also complained that the verdicts were excessive. However, since that defendant is entitled to judgment n. o. v. and Tidewater did not join in that complaint, the question need not be discussed.
On this record plaintiff is entitled to recover from the master of Concannon and Hartley. Tidewater had exclusive control over them at the time of the accident and the recovery, therefore, can only be against it.
Judgment against Fred Whittaker Company is reversed and here entered in its favor.
Judgment against Tidewater Field Warehouses, Inc. is affirmed.