Lead Opinion
Opinion by
The accident which resulted in the injury to the plaintiff below was a peculiar one. He was crossing a county bridge over Chartiers creek, in the borough of Carnegie, about eleven o’clock at night on October 8, 1904, when he saw a street railway car coming towards him on one of the two tracks upon the bridge. He was on the track upon which the car was approaching and stepped over onto the other track when he heard a car coming behind him. He thereupon stepped up from the track onto a water main which was upon the cartway of the bridge, and, to steady himself while in that position, placed his hand upon a latticed railing, which, for some time, had been in an upright position between two beams, the bottom of it
The contract with the appellee for the reconstruction of the sidewalks on the bridge was in writing, but at the time it was executed the appellee was under a written contract or agreement with a partnership known as the Nelson & Buchanan Company, by the terms of which that partnership or firm was to do all bridge work within a specified territory, including the borough of Carnegie. The execution of this agreement was admitted on the trial. On June 23, 1904 — seven days after the appellee had made its contract with the county of Allegheny — it - notified
Nothing urged by counsel for appellant can take this case out of the rule as to the liability of an independent contractor for injuries resulting from his negligence in performing his contract. Contracts for public works are within the rule: Painter v. Pittsburg, 46 Pa. 213; Erie v. Caulkins, 85 Pa. 247; Susquehanna Boro. v. Simmons, 112 Pa. 384. Some stress is laid upon the clause in the contract between the appellee and the county of Allegheny that it was not to be sublet, but of this the appellant can take no advantage. If he had a cause of action against any one, it was against the party whose negligence caused it, and not against another, having had, as a matter of fact, nothing at all to do with the prosecution of the work at the time of the accident.
In directing judgment to be entered for the defendant n. o. v. the court below failed to dispose of the rule for a new trial. This is not a proper practice. When we called attention to it on the argument of this appeal, the statement was made that the court below had probably followed Dalmas v. Kemble, 215 Pa. 410. Nothing said in the concluding words of that opinion justifies the holding of a rule for a new trial when a court below undertakes to enter judgment on the verdict or for the plaintiff or defendant n. o. v. No case is ripe for judgment with a rule for a new trial undisposed of. The present case well il
Judgment affirmed.
Concurrence Opinion
concurring:
Under the evidence in this case, I would not affirm on the theory that the defense of independent contractor was a matter of law for the court; I would, however, on the ground that no negligence was proved. The defendant company could not reasonably have anticipated the happening of the events which resulted in the plaintiff’s injury, for the railing which gave way was never intended for the use to which he put it.