31 A.2d 906 | Pa. | 1943
Paul Autenreith, J. Harold Autenreith and Julius Autenreith, partners trading as Autenreith Company, were lessees of the major portion of a building in the Borough of Sharpsburg, and conducted there a general mercantile business. They engaged C. H. Kerr, trading as C. H. Kerr Company, as a general contractor to construct an elevator on the premises and to make repairs and alterations to the second floor. The work of installing the elevator was sublet by Kerr to George T. Marshall, trading as Marshall Elevator Company, and various portions of the work to other sub-contractors. During the progress of the operation Domenico Tallarico, while walking along the street in front of the building, was struck on the head by a board about 4 feet long, from 8 inches to a foot wide, and two inches thick, which was thrown out of the second-story window; that it was thrown and not merely dropped was shown by the fact that in its course it described an arc from the building out toward the curb. Tallarico brought suit against the Autenreiths, Kerr and Marshall to recover damages. Kerr died and Edna B. Kerr, executrix of his estate, was substituted as defendant in his stead. The jury found a verdict in favor of the Autenreiths and Marshall but against the Kerr estate. The executrix appeals from the refusal of the court below to grant her motion for judgment n. o. v., and also from an order refusing to quash the writ of scire facias by which she was brought in as party defendant. *172
In a footnote to the opinion in the case of Doerr v. Rand's,
What then are the facts adduced by plaintiff to show that Kerr was in exclusive control of the board either by himself or through agents or employes? According to the testimony the only use for boards of the width and thickness of the one which struck plaintiff was in connection with the construction of the elevator, but, although it appeared that the lumber used in framing the elevator shaft had been originally billed to Kerr, there was no evidence that anybody employed by him was working in or around the shaft on the day of the accident; in fact, plaintiff's testimony was all to the effect that only the workmen of Marshall, the elevator subcontractor, were engaged there at that time. Unfortunately for plaintiff, however, the jury exonerated Marshall. There were carpenters laying flooring on the second floor of the building, but Herbert Otto, a witness called by plaintiff, stated that he was a sub-contractor and that these men were working for him; there was no real evidence to the contrary,2 nor any evidence that Kerr employed, paid, supervised or controlled the carpenters; furthermore, the carpenters did not have or use boards like the one which struck plaintiff. In short, *174 plaintiff failed to prove that anybody employed by Kerr had possession of, or was working with, boards of that kind at or about the time of the accident, or that Kerr then had any control, exclusive or otherwise, over such material.
In view of what has been said, it is unnecessary to decide whether the court was correct in refusing to quash the writ of scire facias to substitute the executrix as party defendant.
The judgment against defendant Edna B. Kerr, executrix of the estate of C. H. Kerr, is reversed and is here entered for said defendant.