Keefer v. Lombardi
Decision Date | 14 January 1954 |
Citation | 376 Pa. 367,102 A.2d 695 |
Parties | KEEFER et al. v. LOMBARDI et al. |
Court | Pennsylvania Supreme Court |
Horace N. Lombardi, Marvin D. Weintraub, Anthony J. Smith, Philadelphia, for appellants.
W. Glenn George, Abe J. Goldin, M. Stuart Goldin, Goldin & Goldin, Philadelphia, for appellees.
Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
On May 11, 1949, the defendants, as independent contractors, entered into a contract with the City of Philadelphia to construct a storm relief sewer in and about Wingohocking Street between 3rd and 9th Streets in Philadelphia. It was anticipated and planned that this job would necessitate the use of explosives and other blasting instrumentalities. It was also foreseen that, regardless of the care with which such dangerous properties would be used, the possibility always loomed of damage to private property in the area. The contract between the defendants and the City of Philadelphia provided, inter alia,
* * *'(Emphasis supplied.)
As the immediate and direct result of the subterranean violence resulting from the borings and blastings conducted by the defendants, the three plaintiffs in this case suffered serious losses in that their buildings and improvements were damaged and in some instances entirely destroyed, sidewalks caved in, and emergency repairs were made necessary. The plaintiffs initiated suits in assumpsit against the defendants averring that the damages and injuries done to their properties were caused by the inherent nature of the work performed by the defendants, and, at the ensuing trial, recovered verdicts.
The defendants appeal, urging judgment n. o. v. and a new trial. They contend that the plaintiffs did not allege or prove negligence and that the plaintiffs' remedy, if they had any at all, was through a Board of View assessing their respective damages. This contention lacks merit because the contract referred to carries a specific provision in which the defendants expressly assume liability for 'any and all loss and damage sustained by any person or party * * * that may occur either during the performance or subsequent to the completion of the work * * * or sustained as a result or consequence thereof, irrespective of whether or not such injuries or damage be due to negligence or to the inherent nature of the work. * * *'
In Del Pizzo v. Middle West Construction Co., 146 Pa.Super. 345, 22 A.2d 79, 80, the plaintiffs brought actions in trespass to recover for damages sustained as the result of blasting performed by the defendant in the execution of a contract with the municipality. At the trial, the plaintiff did not prove any negligence on the part of the defendant but the verdict he obtained was affirmed because of the terms of the contract existing between the defendant and the municipality.
(Emphasis supplied.)
In so holding, the Superior Court followed this Court's decision in Baier v. Glen Alden Coal Co., 332 Pa. 561, 3 A.2d 349. There, the plaintiffs instituted action of trespass to recover damages caused through the use of dynamite by the defendant's contractor when he drilled a hole in the sidewalk fronting the plaintiff's house. Permission for the drilling had been granted to the defendant by resolution of the city council which provided that the work could only be done 'with the understanding that the (defendant) * * * shall be liable for all damages to persons and property during the time said drill holes are being put down * * *' The defendant's attempt to escape liability on the ground that it had hired an independent contractor to do the work failed:
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Simons v. Tri-State Const. Co.
...repay the injured owner for such damage." The court permitted the property owner to sue the contractor directly. In Keefer v. Lombardi, 376 Pa. 367, 368-69, 102 A.2d 695, cert. denied 347 U.S. 1016, 98 L.Ed. 1138, 74 S.Ct. 871 (1954), the court held that a property owner could sue the contr......