Hader v. Coplay Cement Mfg. Co.

• Citation: 189 A.2d 271,410 Pa. 139
• Parties: Steven J. HADER, Appellant, v. COPLAY CEMENT MFG. CO., a Pennsylvania Corporation, and Kennedy Van Saun Mfg. & Eng. Corporation, Defendants, and Lloyd S. Keifriter, Additional Defendant.
• Decision Date: 19 March 1963
• Court: United States State Supreme Court of Pennsylvania

189 A.2d 271

410 Pa. 139

Steven J. HADER, Appellant, v. COPLAY CEMENT MFG. CO., a Pennsylvania Corporation, and Kennedy Van Saun Mfg. & Eng. Corporation, Defendants, and Lloyd S. Keifriter, Additional Defendant.

Supreme Court of Pennsylvania.

March 19, 1963.

Lewis R. Long, Bethlehem, for appellant.

Donald E. Wieand, Richard W. Shaffer, Allentown, Butz, Hudders Tallman & Wieand, Allentown, for Coplay Cement Co. and Kennedy Van Saun Manufacturing & Engineering Co.

Morris Efron, Maxwell E. Davison, Efron & Davison, Allentown, for Loyd S. Keifriter.

Before BELL C. J., and MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.

JONES Justice.

On and prior to May 24, 1955, Coplay Cement Mfg. Co., [Coplay] owned and operated at Coplay, Lehigh County, a cement manufacturing plant and stone quarry. Contemplating improvements and additions to its facilities, Coplay on September 22, 1954 entered into a written contract with Kennedy Van Saun Mfg. & Eng. Corp., [Kennedy], a concern which has a plant and factory at Danville, Pa., for the manufacture and delivery by Kennedy, inter alia, of a two and a quarter million pound stone crusher to be located on Coplay's land. This stone crusher was manufactured and, in the late winter or early spring of 1955 (possibly March, 1955), was delivered to Coplay in accordance with the contract.

This stone crusher was to be installed in an open, uncovered pit or quarry, with the top of the crusher approximately at ground level and the base of the crusher 30 to 35 feet below surface in the quarry, approximately a quarter of a mile from Coplay's plant but upon Coplay's land. This crusher was to be housed in a building which was to be approximately 50 feet high. For the unloading, assembling, and installation of the stone crusher and erection of the building to house the crusher Coplay had entered into a contract with Lloyd S Keifriter [Keifriter], payment for such work to be on a 'cost plus' basis.

Upon delivery by Kennedy to Coplay of the manufactured stone crusher, Keifriter began the work of installation and erection provided under the Coplay-Keifriter contract. By May 24, 1955, Keifriter had begun the erection of the building to house the crusher and by that date this building, 50 feet high, was roofed and partially sided although most of the sides of the building were still open. By that date the crusher itself had been set in place, inside of and at the base of the building, above the open pit or quarry. The work of installation of the crusher was still in progress and bolts and other materials necessary to secure the crusher had not been completely attached.

What might be termed the outer face of the crusher, circular in shape and known as the spider, was in place and surrounded by steel girders. Beyond these girders, on the same general level, was a concrete area for walking--this area surrounded the girders and spider--and surrounding this concrete walk was a four foot high concrete wall. The top of the spider was six inches higher than the level of the surrounding girders; from the spider to the girders was a space of approximately 24 inches; from the girders to the concrete walk was a space of approximately 30 inches. All the spaces between the concrete walk and the girders and the girders and the spider were open.

On May 24, 1955, Steven J. Hader, the plaintiff, [Hader] was employed as a millwright by Keifriter and had been so employed for a number of years. ^[1] On that date at about 8:20 a. m., Hader was carrying a large bolt--36 inches long, 2 1/2-3 inches in diameter and weighing 60 pounds--from the concrete walking area over the girders to the spider for the purpose of inserting this bolt in the spider. There had been a drizzling rain that morning and, by reason of the fact that the sides of the structure which housed the crusher were for the most part open, moisture had formed on the girders and the spider and this moisture together with what appeared to be dust, ostensibly coming from cement plants in the vicinity, ^[2] caused a slippery condition on the top of the girders and the spider. Hader stepped from the concrete walking area to a girder and, attempting to step from the girder to the spider, he placed his right foot on the spider, slipped and fell through the open space between the spider and the girder, falling a distance of approximately 35 feet into water located at the base of the crusher which was at the bottom of the pit or quarry. As a result of that fall, Hader sustained serious and disabling injuries.

Hader instituted a trespass action against Coplay and Kennedy in the Court of Common Pleas of Lehigh County. Hader alleged and following negligence on the part of Coplay and Kennedy: (a) a failure to place planks over the open spaces between the girders and top of the spider; (b) the duties of his employment, as imposed upon him by Coplay and Kennedy, compelled him, encumbered with a large and heavy bolt, to step over a very wide open space between the girder and the spider; (c) a failure to keep the surface of the top of the spider and the girders free of slippery substances and a failure to remove such slippery substances, the slipperiness not being discernible to the naked eye; (d) a failure to furnish him with a safe place in which to work; (e) a failure to supply scaffolds, toe-boards and planks of the kind and nature required by statute, by the rules and regulations of the Department of Labor and Industry of the Commonwealth and by the provisions of the Union contracts. Coplay and Kennedy joined Keifriter as an additional defendant in the action.

The matter came on for trial before the Honorable H. V. Scheirer and a jury. After a three day trial and at the conclusion of Hader's case, all three defendants moved for a compulsory nonsuit which was granted. A motion to remove this compulsory nonsuit having been denied, judgment of compulsory nonsuit was entered by the court against Hader and in favor of all three defendants. From that judgment Hader appeals.

In passing upon the propriety of this entry of a judgment of compulsory nonsuit certain principles must guide us: (1) a nonsuit should be entered only in a clear case: DiGiannantonio v. Pittsburgh Rwys. Co., 402 Pa. 27, 29, 166 A.2d 28; Haddon v. Lotito, 399 Pa. 521, 161 A.2d 160, 81 A.L.R.2d 1199; Dunmore v. McMillan, 396 Pa. 472, 152 A. 708; (2) on appeal from a refusal to take off a compulsory nonsuit, the plaintiff must be given the benefit of all favorable testimony and every reasonable inference of fact arising therefrom and all conflicts therein must be resolved in favor of the plaintiff: Idlett v. Tracey, 407 Pa. 278, 281, 180 A.2d 37; Davies v. McDowell National Bank, 407 Pa. 209, 211, 180 A.2d 21; Smith v. Pittsburgh Rwys. Co., 405 Pa. 340, 342, 175 A.2d 844; Donaldson v. Mafucci, 397 Pa. 548, 156 A.2d 835.

The court below entered the compulsory nonsuit and later refused to remove such nonsuit principally on two grounds, i. e. that Hader had voluntarily assumed the risk or danger and that he was guilty of contributory negligence as a matter of law. The court did state, however, that: '[h]ad [Hader's] conduct not been a factor in causation from act to injury, we would have greater concern with the relationship between the defendants and their respective duties.'

Upon appellate review we are not bound by the reason or reasons advanced by the court below in support of a judgment or order for it is the judgment or order itself which is the subject of review. In Thomas v. Mann, 4 Casey (28 Pa.) 520, 522, Mr. Justice (later Chief Justice) Woodward said: 'The only error upon the record is a wrong reason for a right judgment; but as we review not reasons but judgments, we find nothing here to correct.' The true rule on appellate review is that stated in Sherwood v. Elgart, 383 Pa. 110, 115, 117 A.2d 899, 901, 63 A.L.R.2d 490: 'The rule here applicable is that a correct decision will be sustained if it can be sustained for any reason whatsoever; in other words we will not reverse in such a case even though the reasons given by the Court below to sustain its decision was erroneous. [citing cases].' See also: Kopka v. Bell Telephone Co., etc., 371 Pa. 444, 449, 91 A.2d 232; Mitchell et ux. v. Marinelli et al., 356 Pa. 517, 521, 52 A.2d 203; Rissmiller v. Evangelical Lutheran Congregation, 268 Pa. 41, 45, 110 A. 740; Brew v. Hastings, 206 Pa. 155, 161, 55 A. 922; Youngwood Building and Loan Association v. Henry et al., 137 Pa.Super. 124, 127, 128, 8 A.2d 427.

In the case at bar, we do not, nor need we, pass upon the validity of the principal reasons given by the court below for the entry of this judgment of compulsory nonsuit, i. e. voluntary assumption of risk and contributory negligence, because the entry of this judgment was eminently proper upon the ground that this record discloses no evidence whatsoever of negligent conduct upon the part of Kennedy and Coplay and Hader has no remedy against Keifriter save under the provisions of the Workmen's Compensation Act.

At the outset we must inquire into the relationship between Coplay and Kennedy and Coplay and Keifriter insofar as the liability of each or all to Hader is concerned.

The terms of the written contract between Coplay and Kennedy spelled out their mutual obligations; Kennedy was required simply and solely to manufacture, according to specifications, and to deliver to Coplay the stone crusher and the installation of the stone crusher was not an obligation of Kennedy. This contract did provide that Coplay, in its judgment, could avail itself of the services of Kennedy's 'engineers millwrights or mechanics * * * for the purpose of superintending the erection or operation of the machinery' covered by the contract upon the payment to such...