370 Pa. 82 | Pa. | 1952
Opinion by
This case arose out of two actions in trespass tried at the same time, brought respectively by Frank Same
Hauser and Raymond appeal and assign as error the refusal of their motions for judgment non obstante veredicto and the grant of a new trial. Winter and the Railroad Company assign as error the grant of a new trial. The plaintiffs assign as error the grant of a new trial to Hauser and Raymond. Rosati took no appeal.
Plaintiffs were injured on May 5, 1949 while working as laborers in the Railroad Company’s roundhouse located at 38th and Jackson Streets, Philadelphia, when a section of an overhead steam pipe fell on them. This asbestos covered steam pipe which was four inches in diameter ran around the top of the roundhouse about twenty or thirty feet above the floor and five or six feet from the ceiling. It was suspended from the ceiling by rods which hooked into eyes, the eyes in turn being fastened into the rafters. These rods were then
The Railroad Company being desirous of renovating and altering the roundhouse, entered into a written contract with Hauser, a general contractor. Hauser then employed as subcontractors Rosati, Raymond and .Winter. Rosati’s specific job was to remove concrete which was in the engine pits of the roundhouse so that the pits could be extended. Removal of this concrete was to be done by a clain shell attached to the boom of a crane, but due to the depth of the concrete, it became necessary to utilize manual labor. Rosati obtained this manual labor from Eastern Construction Co., not a defendant here, and the plaintiffs, who worked with pick and shovel and jack hammer, were engaged in this work when they were injured. Raymond was to drive casings into the ground inside the roundhouse. For this they had a pile driver with a boom and rack through which a four-ton hammer was raised and lowered to pound the casings. Winter was hired to dismantle the radiators which were attached to the steam pipe which fell. In order to complete this work it was necessary to detach the smaller pipes which connected the radiators to the overhead steam pipe. These three subcontractors carried on their work simultaneously.
The evidence showed that the Railroad Company continued, after the renovation started, to run engines into the roundhouse where they took on water and were greased. There was an intimation in the testimony that the steam pipe supplied heat until the radiators were disconnected. The testimony showed that the employes of Raymond in the course of their work hit
Ordinarily, if the record shows that the interests of justice require a new trial as to all defendants — and the lower court so states — an order to that effect will not be disturbed on appeal: Lorenz v. Caste Development Company, 368 Pa. 131, 81 A. 2d 887. However, in the instant case we can find no reason substantiating such conclusion. This long and complicated case was properly tried and fairly submitted to the jury. Upon a careful examination of the reasons given in the opinion of the lower court for the grant of a new trial to all parties, we conclude that none of them support the action taken by it.
The only evidence in the record which relates to the activities of the Railroad Company is the testimony of plaintiff Maddox that the “engines used to go in [the roundhouse] and they used to work on them, and grease them”, of the plaintiff Same that they took on water, and some vague testimony that the heat for the roundhouse came from the steam pipe until the radiators were disconnected. This, we conclude, as did the jury, is insufficient to hold the Railroad Company responsible for the injuries to the plaintiffs and requires the application of the principle that where a jury has rendered a verdict for a defendant and it appears as a matter of law there is no liability on the part of that defendant, a new trial as to such defendant may not be granted: Fornelli v. Penna. R. R. Co., 309 Pa. 365, 164 A. 54; Brogan v. Philadelphia, 346 Pa. 208, 29 A. 2d 671; Fritz, Admrx., v. York Motor Express Company, 358 Pa. 398, 58 A. 2d 12.
Plaintiffs argue that the above summarized testimony establishes that the Railroad Company did not discharge its duty to the plaintiffs as invitees in that it did not as owner and occupier keep the premises in a safe condition. The difficulty with this position is the paucity of proof of control possessed or exercised by the Railroad Company. There was no evidence of any control by it over the manner in which the work was to be done. Such evidence is necessary in order to hold the Railroad Company responsible: Allen v. Willard, 57 Pa. 374; Smith v. Simmons, 103 Pa. 32, 36; Silveus v. Grossman, 307 Pa. 272, 161 A. 362; and compare cases relied upon by the plaintiffs, James Pender v. George Raggs et al., 178 Pa. 337, 35 A. 1135,
Plaintiffs also contend that the record showed that the Railroad Company was responsible for the confining conditions under which the renovation was conducted. Consequently, they argue, the pile driver had to be operated from outside the building and this caused the hammer to strike the steam pipe. There was no evidence that the activity of the Railroad Company within the building was the reason the pile driver operator remained outside or that if he had been inside, the hammer would not have struck the pipe.
As to Hauser, the general contractor, who was held liable by the jury, we must sustain his appeal and here enter judgment in his favor. His liability is predicated on the supposition that he had control over the premises and the manner in which the work was to be done, that he improperly exercised or failed to exercise that control and that thereby the plaintiffs were injured. Such control must exist or he is not liable: See Tallarico v. Autenreith et al., 347 Pa. 170, 31 A. 2d 906. However, if he was in control of the premises and the work, plaintiffs’ sole remedy would be statutory, under the workmen’s compensation legislation: Swartz v. Conradis, 298 Pa. 343, 148 A. 529.
Relying upon the cases which hold that a plaintiff dependent upon circumstantial evidence must prove that the only reasonable inference is that the accident was caused by the negligence of the defendant,
However, this is not a case where plaintiffs failed to produce evidence establishing negligence. Plaintiffs’ theory was one of concurring negligence. The testimony that Raymond’s employes permitted the heavy hammer on the pile driver to hit the pipe and that
The liability of Winter was submitted to the jury because of the oral testimony that its employes would “shake the overhead pipe” when they removed the radiators and were “beating the tees” which connected the smaller pipes from the radiators with the steam pipe. It is well established that oral testimony is for the jury: Satterwhite v. National Powder Company, 362 Pa. 133, 66 A. 2d 278; Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 163 A. 523. Here the jury either refused to believe such testimony or concluded that the activities of Winter’s employes did not weaken the steam pipe or contribute to its collapse. This Court on several recent occasions has reviewed the record and concluded that it was an abuse of discretion for the court below to award a new trial against an exculpated defendant: Decker v. Kulesza, 369 Pa. 259, 85 A. 2d
The only remaining question to be considered is found in the principal reason given by the lower court for the grant of a new trial to all of the defendants. This is that the trial judge withdrew from the jury’s consideration the decision as to whether plaintiffs were free from contributory negligence.
A new trial will not be granted because the trial judge did not charge on contributory negligence where there is no evidence from which a jury could have found contributory negligence: Knoble et ux. v. Ritter, 145 Pa. Superior Ct. 149, 20 A. 2d 848; see Hepler, Admrx., v. Hammond, 363 Pa. 355, 69 A. 2d 95. The conduct of the plaintiffs in no way contributed to the accident. They were laborers engaged in digging out the concrete from the pits. They had nothing to do with the overhead pipe. What they were doing at the time the accident occurred was not a factor in producing the accident.
What we think the lower court meant to rely upon was the doctrine of assumption of risk for in this portion of its opinion it said: “At the same time, if the subcontractors were operating in such a negligent manner that an ordinarily reasonably prudent man would have foreseen the probable consequences of such act, and the plaintiffs continued to work under the hammered and bumped pipes, it would be a question for the jury as to their contributory negligence.” However, we cannot conclude that the question whether plaintiffs as
The burden was on the defendants to produce evidence of contributory negligence or assumption of risk and they offered no evidence at all. We therefore hold that the trial judge was correct when he said in his charge, “in addition to that the plaintiffs must present to you a case that is free from any negligence on their own part which, however slightly, contributed to their own accident. I do not think you need concern yourselves with contributory negligence on the part of the plaintiffs in this case. There was no evidence of any negligence on the part of the plaintiffs which contributed to their own accident. So you may disregard that.” It should be added that all of the defendants acquiesced in this instruction and none of them included it as a reason in support of their motions for new trial.
It should be noted that the lower court in this case very properly adopted the suggestion of this Court in setting forth with particularity the reasons for its action rather than relying upon the generality that the interests of justice require it: See Rules of Supreme Court No. 43 and Bellettiere v. Philadelphia, 367 Pa. 638, 81 A. 2d 857, where this Court, speaking through Mr. Justice Horace Steen said, at p. 644: “. . . we would strongly impress upon trial courts the obvious desirability of stating in detail the exact reasons for which alone a new trial is granted instead of relying
This decision was based on Section 203 of the Workmen’s Compensation Act of 1915. This section was amended by the Act of June 4, 1937, P. L. 1552, 77 PS §52. After the amendment was declared unconstitutional (see Rich Hill Coal Company et al. v. Bashore, 334 Pa. 449, 7 A. 2d 302), the Act of June 21, 1939, P. L. 520 was passed reenacting Section 203 of the original Workmen’s Compensation Aet of 1915.
See Sharble et al. v. Kuehnle-Wilson, Inc., 359 Pa. 494, 59 A. 2d 58; Stauffer, Admr., v. Railway Express Agency, Inc., 355 Pa. 24, 47 A. 2d 817.
In light of the jury’s verdicts in favor of the Railroad Company and Winter and our decision with respect to Hauser, whether plaintiffs assumed the risk is as to them immaterial.