Millili v. Alan Wood Steel Co.

• Decision Date: 03 May 1965
• Citation: 209 A.2d 817,418 Pa. 154
• Parties: Peter MILLILI v. ALAN WOOD STEEL COMPANY, Appellant.
• Court: Pennsylvania Supreme Court

209 A.2d 817

418 Pa. 154

Peter MILLILI v. ALAN WOOD STEEL COMPANY, Appellant.

Supreme Court of Pennsylvania.

May 3, 1965.

Thomas J. Burke, Haws & Burke, James S. Kilpatrick, Jr. Ardmore, for appellant.

Charles A. Lord, Philadelphia, Harry T. Rosenheim, Jr., Glenside John A. McMenamin, Richter, Lord, Toll & Cavanaugh Philadelphia, for appellee.

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

MUSMANNO, Justice.

On August 20, 1961, Peter Millili, the plaintiff in this case, lost his right hand, or a good part of it, when a crane passed over it as he was performing a paint job in the mill of the Alan Wood Steel Company. He brought a trespass action against Alan Wood Steel and the jury returned a verdict in favor of the defendant. Millili moved for a new trial which was granted by the court en banc on the basis that the Trial Judge had erred in failing to instruct the jury that, if the operator of the crane was guilty of reckless or wanton misconduct, the plaintiff could recover regardless of any possible contributory negligence.

The defendant Alan Wood Steel appeals, seeking reversal, contending that the plaintiff had not requested the Trial Judge to charge on reckless or wanton misconduct, that he took no specific or general exception to the charge and that the failure to charge on the subject in question was not such fundamental and basic error to warrant a new trial.

In Patterson v. Pittsburgh Railways Company, 322 Pa. 125, 185 A. 283, this Court said:

'Inadequacy of a charge may be taken advantage of on general exception where the instructions omitted are vital to a proper conception by the jury of the fundamental principles of law involved * * *. Indeed, even in the absence of a general exception, the appellate court of its own motion may reverse because of basic and fundamental error.'

In Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 145, 189 A.2d 271, 274, Justice Jones, speaking for the Court, pointed out that:

'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.'

and quoted Chief Justice Woodward, who said, in Thomas v. Mann, 4 Cas. 520, 522, 28 Pa. 520, 522:

'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 pertinent rule was even more forcibly declared 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 reason given by the Court below to sustain its decision was erroneous.'

On the whole record we find that the action of the Court below in ordering a new trial was proper.

The instrumentality involved in this case was a mill crane which, contrary to the make-up of most vehicles, usually travels on a track which is above rather than below the traveling apparatus. The crane operator thus cannot always see the track over which his machine moves. On the day of the accident here in controversy, Millili was standing on a suspended scaffold some 50 feet above the ground, engaged in painting the underside of the structure sustaining the crane and track. To apply the brush to the painting surface it became necessary for him to bend over and, in doing so, it became equally necessary that he cling to something. He clutched with one hand the crane track rail above him as he leaned over painting with the other hand. Before he began this particular movement, he noted that the crane was in a stationary stance some three or four feet away from him. Suddenly and without warning it moved toward him and, in the plaintiff's words, 'he cut my hand right away.' The operator stopped the crane and the plaintiff exclaimed to him: 'What have you done to me? My hand is cut off.' The operator replied: 'I didn't realize that you were there.'

The operator testified that he did see a man standing on the scaffold, that is, he could see his legs. And then, at a point, he said, he saw that the man's legs 'started climbing up,' undoubtedly the spasmodic reaction of pain resulting from the crushing and severing of the hand above. After stopping the crane the operator saw Millili 'hanging on the side,' he grabbed him and applied a tourniquet to the bleeding hand, or what was left of it.

In his charge to the jury, the Trial Judge said:

'Just by this rule was the plaintiff negligent in grasping the rail upon which the crane traveled, in determining whether the plaintiff was negligent your answer to the question of fact already called to your attention will be of some assistance. If you find that the plaintiff was negligent, then it would be your duty to return a verdict for the defendant. In such case you need give the instructions going to damage no further consideration.'

When the verdict was rendered in open Court, plaintiff's counsel asked for a poll of the jurors. The Court clerk asked: 'How do you find in this issue?' Juror No. 1 replied: 'We feel that it was negligence.'

Since the jury had found for the defendant, it is obvious that when Juror No. 1 said 'We feel that it was negligence,' she was not referring to negligence by the defendant. She was referring to negligence of the plaintiff as explained by the Trial Judge when he put the question: 'Was the plaintiff negligent in grasping the rail?' In this particular part of his charge, the Trial Judge referred to a potential plaintiff's 'negligence' three times in two immediately succeeding sentences.

Of course, there is nothing wrong about designating 'contributory negligence' as 'negligence', but in a case of this character where the alleged negligence and alleged contributory negligence were in such close juxtaposition as almost to be intertwined, the Trial Judge should have taken pains to differentiate sharply between negligence and contributory negligence. This he failed to do.

As already stated, the crane operator testified that he saw the plaintiff on the scaffold. He knew that this workman was painting, even though he saw only his legs. But if he saw the legs, it did not require much reasoning on his part to realize that the workman's hands could not be too far away and that, in order to retain his perch on the scaffold, one of the painter's hands could well be grasping the rail above his head. The Trial Judge, however, although nothing could possibly have been further from his intentions, in all probability misled the jury into believing that the plaintiff had the burden of proving that he was without fault in holding on to that rail. In the early part of his charge, the Judge said:

'It is required of a workman working in a place of danger that he exercise care for his own safety according to the circumstances. He, the workman, knows that he is working, occupying a place of danger and his care must be commensurate with the danger. He equally knows that he must perform faithfully the services required of him, both the obligation to protect himself from harm in this place of danger and the obligation to perform faithfully the services required of him, and must be met with a due regard for the other.'

At the end of his charge the Judge said to the jury:

'The Court reminds you that we have had testimony that it is required of a workman working in a place of danger that he exercise care for his own safety, according to the circumstances. He, the workman, knows that he is occupying a place of danger and his care must be commensurate with the danger. He equally knows that he must perform faithfully the services required of him, both the obligation to protect himself from harm in this place of danger and the obligation to perform faithfully the services required must be met with a due regard for the other duty. Judged by this rule, was the plaintiff negligent?'

This repetition by the Judge, almost word for word, of what he had already told the jury about the obligation of the plaintiff-workman could not but have influenced the jury into believing that it was the plaintiff who had to defend himself rather than the defendant. The inevitable inference from this double-barreled insistence that the plaintiff had an obligation to protect himself from danger, and be faithful to his employer (although no one had questioned that Millili was anything other than a faithful employee) was that there was something wrong about the plaintiff placing his hand on the rail. But there was no more fault attaching to this act than there is in placing one's hand on a cold stove. It is only when heat is introduced into a stove that it can burn. The plaintiff could not ipso facto be charged with contributory negligence because he grasped the rail. The rail was a wholly innocuous agency, so long as the crane was not running. The rail provided an anchorage for the workman as he bent over to paint, 50 feet above the ground, doing his work and performing 'faithfully the services required.' A line workman may climb, with perfect safety, a telegraph pole to which high tension wires are strung before the electricity is turned on. A cleaner may work safely on the floor of a twenty-foot deep swimming pool before the water gushes in. A plane mechanic may, with complete insouciance, walk out on the wing of a jet plane before it leaves the ground. Thus Millili's grasping of the crane track rail could not of itself constitute contributory negligence and the Court erred in failing to charge that the burden of proof was on the defendant to prove that, by taking hold of the rail, the plaintiff had culpably contributed...