Du Bois Electric Co. v. Fidelity Title & Trust Co.

• Decision Date: 26 December 1916
• Docket Number: 2168.
• Citation: 238 F. 129
• Parties: DU BOIS ELECTRIC CO. v. FIDELITY TITLE & TRUST CO.
• Court: U.S. Court of Appeals — Third Circuit

238 F. 129

DU BOIS ELECTRIC CO. v. FIDELITY TITLE & TRUST CO.

No. 2168.

United States Court of Appeals, Third Circuit.

December 26, 1916

Rehearing Denied February 9, 1917.

A. L Cole and H. B. Hartswick, both of Clearfield, Pa., for plaintiff in error.

Charles Alvin Jones and Sterrett & Acheson, all of Pittsburgh, Pa for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

McPHERSON Circuit Judge.

On October 12, 1912, a banner stretched across a street in the borough of Du Bois fell and severely injured Vernon W Pancoast, a citizen of New York. In the following March he sued the borough, and in August, 1914, obtained a judgment, which was removed to this court by a writ of error and afterward reversed. Borough of Du Bois v. Pancoast, 218 F. 60, 133 C.C.A. 662. On October 6, 1914, while the writ of error was pending, he brought a second suit, naming the Du Bois Electric Company, the Deposit National Bank, and Joseph Bensinger (who we understand was the tenant of the Commercial Hotel) as defendants. The suit against the borough was abandoned, and the second action was discontinued so far as the bank and Bensinger were concerned. Pancoast died in November, 1915, and the Fidelity Title & Trust Company carried on the action as ancillary administrator. A verdict and judgment for the plaintiff having been obtained in August, 1916, the present writ of error was taken out. The following facts, which are quoted from the former opinion, appeared also in substance on the last trial:

'In October, 1912, a banner of a political party was stretched across one of the principal streets in the borough of Du Bois. One end of the supporting cable was fastened to a chimney that extended above the roof of the Commercial Hotel, a four-story brick building abutting on the street. * * *

'The banner-- which was of considerable size, was made of rope mesh, and carried a portrait on cloth of one of the candidates for president-- had been stretched across the street only a few days before October 12th. It was suspended from a wire rope or cable, and one end of the cable was fastened to the chimney in question. The chimney was an extension of the hotel wall, and was about 21 inches square, and probably from 3 to 4 feet in height. The roof of the building was nearly flat, and a cornice extended beyond the chimney about 3 feet, overhanging the sidewalk to this extent. Two turns were taken about the base of the chimney, and a loop was formed by clamping the end to the body of the cable. Witnesses testified that on the day in question the weather was 'very stormy,' and described the wind as 'pretty strong' and as 'unusual.' Whatever may have been the cause of the accident, the chimney broke about 6 or 8 inches above the roof, and the loop probably slipped upward off the chimney, thus letting the banner down. The plaintiff was injured, not by the banner, but by one or more of the falling bricks.'

On the trial now under review it appeared further that the Electric Company had put up the banner and had fastened the supports on October 7th. The company had been employed by M. O. Skinner, the local chairman of the party referred to, Skinner himself having, no doubt, obtained the necessary permission to use the buildings on each side of the street. The company had no connection with the matter except hanging the banner, and, having done that work, it withdrew from the premises, and on the same evening reported to Skinner. On October 12th, the day the banner fell, Skinner employed the company to string electric lights along the supporting wire, and this work was done in the morning, the accident taking place in the afternoon. The company was not the owner or occupier of either building, and, after finishing the work of erection, it did not control or supervise the banner or the supports. On the two occasions named, the company was engaged by Skinner to do a few hours' work, and thereupon left the premises, and was afterward paid for its services.

The evidence leaves some room for doubt whether the...