180 F. 268 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1910
This action was instituted by the plaintiff to recover damages for the death of her husband, who was killed in the falling of a building at the northeast corner of Eleventh and Market streets, Philadelphia, on the 15th day of July, 1909. Additions, alterations, and improvements were being made to this building,, which required the tearing out of the two lower stories and almost the entire interior. During the progress of the work the upper stories were shored up, which made the work especially dangerous.
The defendant had entered into a contract with the Sax & Abbott Construction Company to do this work, in accordance with certain plans and specifications, which had been prepared by Rush & Racey, architects. Sax & Abbott Company entered into a written contract with H. Sheeler & Co. for the furnishing of all labor, materials, tools, rigging, scaffolding, and appliances necessary to completely finish the work of shoring the walls, including the cutting of the walls and floors, and other cutting necessary to erect shores and needles, for which it was to receive a certain compensation. This work was the most important to be done, requiring knowledge and judgment in order that the place might be safe and secure against accident. The contractor and subcontractor started the work about the same time,
There was sufficient evidence submitted to carry the case to the jury -on the question of negligence on the part of the contractor and sub-contractor in their manner of tearing out the old part of the building and in putting in the shoring, which together resulted in making the place so obviously dangerous that William R. Hall, an experienced -contractor and builder, three or four days before the collapse, observed that the work of shoring was doné in a way to make it very dangerous, and the holes were cut in the partition wall from the foundation up in a very irregular manner. The building was then regarded by him in such a dangerous condition that he would not risk .going to the fourth floor, but got out as quickly as he could. This •contractor was doing some work on Market street, but for several days prior to the accident warned every one he knew not to stand near the ‘building as it was liable to fall.
This evidence, together with that of the other witnesses, was, we •think, sufficient on the question of the negligent performance of the work. The only other question then is’ as to whether or not the defendant was responsible for this negligence. There is no doubt that upon the contract alone made between the defendant and the Sax & Abbott Company the latter is an independent contractor, for whose negligence the defendant would not be liable.
The Sax & Abbott Company agreed to “provide all material and •perform all work for the alterations and' additions to these properties,” in accordance with the plans and specifications prepared by Rush & Lacey, architects, and it is further agreed that the work “is to be done under the direction of said architects acting as counsel for the lessee, * * * and that the decision of the architects as to the true intent •of the drawings and specifications shall be final.” This supervision -or direction reserved in the contracts, however, evidently is intended ■only to give the architects power to enable them to see to it that the
The defendant offered no evidence, and submitted a request that the court charge the jury that under all the evidence the verdict should be for the defendant. This request was refused. The case was submitted to a jury on the question as to whether or not the supervision of the defendant was such as to make the contractor his agent, for whose negligent acts the defendant would be liable, and there was a verdict in favor of the plaintiff.
The defendant practically abandoned its motion and reasons for a new trial at the argument, and insisted upon the motion for judgment non obstante veredicto upon the ground that the Sax & Abbott Company was an indep'endent contractor, for whose negligent acts, if any, the defendant was-not liable, and insists that the case at bar is controlled by the principle followed in a long line of cases, and aptly stated recently by the Supreme Court of Pennsylvania in Miller v. Merritt, 211 Pa. 127, 60 Atl. 508. The language used there is directly applicable to the provision in the agreement in this case:
“It is apparent * * * that the clause of the agreement * * * conferred on the owner’s superintendent of construction only such' supervisory powers as would, enable him to see that the defendants were performing the work in accordance with the provisions of the contract and specifications, and gave him no authority to direct the workmen as to the methods of executing the details of the work.”
The same principle was.applied in Morning v. Cramp & Company (C. C.) 170 Fed. 364, a case recently tried in this district before Judge
In the case of Bain v. Works Company, 223 Pa. 96, 72 Atl. 279, there was a recovery allowed for personal injuries against the defendant who had employed the contractor to do the work, but had paid the wages of the men employed by the contractor- as they came due. Justice Stewart, in rendering the decision of the Supreme Court, said, inter alia:
“The evidence on the part of the plaintiff would have wholly failed to associate the defendant with any responsibility in connection with the erection of the tanks except for one fact which was undisputed. Though not a single one of the workmen who were engaged says that he was originally employed by any one known at the time to represent the defendant, yet, all say that the wages they received were paid them, in whole or in part, by the defendant company, and not by Robinson. This circumstance, unexplained, would warrant the inference that the contract between defendant and Robinson had been ignored or superseded. The defendant advanced an explanation, wholly consistent with its position, that the work was being done- by Robinson under contract when the accident happened. It was this: That Robinson reported to the .company that he was without funds to pay the men he had employed, and asked that the company do so and charge him with the advancement; that rather than have the work fail, or run the risk of liens, the company acceded to his request, and paid the men directly. This raised a question of fact which necessarily drew the question to the jury. The explanation rested wholly upon oral testimony, which, if believed by the jury, would leave the contract between the defendant and Robinson wholly unaffected by the circumstance that the de*272 fendant had, paid the wages. If the explanation was a true statement of facts, it was more than sufficient to overcome the inference of abandonment of the contract from the payment of wages. Whether it was true was a question for the jury.”
The inference, to be drawn as to the extent of the management and authority exercised by Lacey, from the acts he did and orders given in connection with the work, was for the jury. It was properly submitted, and a verdict rendered in favor of the plaintiff. This being a question of fact, it was decided by the proper tribunal, upon competent evidence, and We therefore are compelled to refuse the motion for judgment non obstante veredicto, and overrule the motion for a new trial.