Greet v. Arned Corp.

• Decision Date: 10 October 1963
• Citation: 412 Pa. 292,194 A.2d 343
• Parties: Franklin GREET, Thomas Lavergheeta and Morris Yanoff v. ARNED CORPORATION and Frank lacobucci, Appellants.
• Court: Pennsylvania Supreme Court

194 A.2d 343

412 Pa. 292

Franklin GREET, Thomas Lavergheeta and Morris Yanoff v. ARNED CORPORATION and Frank lacobucci, Appellants.

Supreme Court of Pennsylvania.

October 10, 1963.

Robert C. Kitchen, Philadelphia, Joseph X. Heincer Philadelphia, for Arned Corporation.

Joseph D. Shein, Shein & Berlant, Philadelphia, for appellees Franklin Greet and others.

James M. Marsh, LaBrum & Doak, Philadelphia, for Frank Iacobucci.

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

O'BRIEN, Justice.

Appellant Arned Corporation [Arned] is the owner of certain land, upon which it was engaged in the construction of dwelling houses. In connection with this construction Arned engaged appellant Frank Iacobucci [Iacobucci] to perform the carpentry work. Appellee Thomas Lavergheeta [Lavergheeta] was employed as a carpenter's helper by Iacobucci, and appellees Franklin Greet [Greet] and Morris Yanoff [Yanoff] were employees of one James Bruno, who had been engaged by Arned to do the roofing work.

The appellees were injured when a scaffold, on which they were working, collapsed. Their actions of trespass resulted in jury verdicts against both appellants, in the amounts of $3,500.00 for Greet, $5,000.00 for Lavergheeta and $20,000.00 for Yanoff. Arned and Iacobucci filed motions for judgment n. o. v. and for new trial, all of which were dismissed by the court en banc. Upon the entry of judgments on the jury verdicts, these appeals were commenced.

Iacobucci seeks a new trial on the ground that the trial court erred in ruling, as a matter of law, that Greet and Yanoff could not be found guilty of contributory negligence. Arned raises this question also, and in addition, complains that the trial court erred in refusing its request for a special finding; in ruling that Iacobucci was its servant or agent; and in failing to rule that the rights of the appellees are limited to those contained in the Workmen's Compensation Act. ^[*] The motions for judgment n. o. v. have been abandoned.

The facts in the case are not complicated. On the morning of September 17, 1959, plaintiffs were engaged in work at the second floor level of the house under construction. All three plaintiffs were standing on a platform which was mounted on a wooden scaffold constructed by Iacobucci's foreman. It was Iacobucci's duty to erect the scaffolding, in accordance with the agreement with the owner, Arned. The scaffolding was intended to be used by workmen of other sub-contractors.

The plaintiffs alleged that Iacobucci was performing the work for Arned and that he was under the direct supervision and control of Arned and that Iacobucci was negligent in erecting the scaffold in an unworkmanlike manner; in permitting the defective scaffold to be used; and in failing to warn the plaintiffs of its dangerous condition. Arned's negligence was alleged to consist of its failure properly to control, inspect and supervise the work of Iacobucci; permitting the scaffold to be erected in an unworkmanlike manner; failure to warn the plaintiffs; and its failure to take proper precautions to protect the plaintiffs in their work.

The trial judge submitted to the jury the questions of whether the defendants were negligent and whether plaintiff, Lavergheeta, was guilty of contributory negligence. The trial judge ruled, as a matter of law, that there was not sufficient evidence upon which the jury could find Greet or Yanoff guilty of contributory negligence, instructing the jury as follows:

'I will pass on to the issue of whether the other two plaintiffs, Greet and Yanoff, were guilty of contributory negligence. The defendants contend that they were, in that they also had seen the scaffold before they entered upon it, and they had agreed that it had been erected in the manner described by Lavergheeta, except, it is my recollection of the evidence, that neither of them knew that the scaffold had been reinforced by crossbars. However, Members of the Jury, these two plaintiffs were not carpenters, they were roofers, and there is no evidence in the case that they had any knowledge as to the proper construction of the scaffold, and there is no evidence that they had any knowledge, either from their own experience or the defendants' or their agents', that the scaffold was unsafe and presented an obvious danger. Under the law the defendants had the burden of proving any contributory negligence on the part of Greet and Yanoff, and the defendants did not present sufficient evidence upon which you could find either of these two plaintiffs guilty of contributory negligence.'

In Miller v. Montgomery, 397 Pa. 94, 97, 152 A.2d 757, 759 (1959) we said:

'Since the burden of establishing contributory negligence is on the defendant it follows that where there is no evidence in the record to justify a jury in inferring that plaintiff was guilty of contributory negligence, it is the duty of the court to give binding instructions that as a matter of law, no such question exists in the case. Hepler v. Hammond, 363 Pa. 355, 69 A.2d 95; McCracken v. Curwensville, 309 Pa. 98, 163 A. 217, 86 A.L.R. 1379; 38 Am.Jur. 1080, Negligence § 367; Summary of Pennsylvania Jurisprudence, Torts [I], § 134. In Hepler v. Hammond, supra, 363 Pa. at page 357, 69 A.2d at page 96 this Court said: 'It is elementary that a trial judge should not instruct a jury to find a material fact in the absence of evidence to support this finding.' In the present case the court either should not have instructed the jury on contributory negligence; or, if it was thought necessary to instruct them on that subject, the Trial Judge should have told them specifically that such an issue was not in this case.'

Our scrutiny of the record in this case does not reveal any evidence of contributory negligence on the part of Greet or Yanoff, nor does the record reveal that the appellants produced any evidence of their contributory negligence or any...