Sarne v. Baltimore & Ohio Railroad Co.
| Decision Date | 24 March 1952 |
| Docket Number | 7917 |
| Citation | 87 A.2d 264,370 Pa. 82 |
| Parties | SARNE et al. v. BALTIMORE & O. R. CO. et al. |
| Court | Pennsylvania Supreme Court |
Argued November 20, 1951
Appeals, Nos. 193 to 200 and Nos. 204 to 207, inclusive, from order and judgments of Courts of Common Pleas Nos. 6 and 7 of Philadelphia County, Sept. T., 1949, Nos. 255 and 256, in case of Frank Sarne and Walter C. Maddox v. The Baltimore & Ohio Railroad Company et al., Order reversed.
Actions of trespass for personal injuries. Before FENERTY, J.
Verdicts for plaintiff Maddox and against defendants, construction company and concrete company, in the sum of $2500; and in favor of plaintiff Sarne against same defendants in the sum of $25,000.; verdicts in favor of other defendants defendants' motions for judgment n.o.v. and new trial refused; new trial awarded by court of its own motion as to all parties, opinion by SMITH, P.J. Plaintiffs and defendants, respectively, appealed.
The order of new trial as to defendants Baltimore and Ohio Railroad Company, Lee A. Hauser, an individual trading as Hauser Construction Company, L. E. Winter Co., Inc. and Raymond Concrete Pile Company is reversed; judgment is here granted in favor of Lee A. Hauser, and the record remanded with direction to the court below to enter judgment on the verdicts in favor of the Baltimore and Ohio Railroad Company and L.E. Winter Co., Inc., and in favor of plaintiff Frank Sarne for $25,000 and in favor of Walter C. Maddox for $2,500 against Raymond Concrete Pile Company.
Milton M. Borowsky, with him Freedman, Landy & Lorry, for plaintiffs.
Ralph S. Croskey, with him John J. Dautrich and Croskey & Edwards, for defendants.
Before DREW, C.J., STERN, STEARNE, LADNER and CHIDSEY, JJ.
This case arose out of two actions in trespass tried at the same time, brought respectively by Frank Sarne and Walter C. Maddox, against five defendants. The defendants are the Baltimore and Ohio Railroad Company (hereinafter called the Railroad Company), Lee A. Hauser, an individual trading as Hauser Construction Company (hereinafter called Hauser), L. E. Winter Co., Inc. (Winter), Raymond Concrete Pile Company (Raymond), Domenic Rosati, Louis Rosati, James Rosati, Robert Rosati and Romolo Rosati, individually and as copartners in the firm of Rosati and Son (Rosati). The trial at which the defendants offered no evidence resulted in verdicts in favor of both plaintiffs against Hauser and Raymond -- for Sarne in the sum of $25,000 and for Maddox in the sum of $2,500. The jury found in favor of the other defendants, the Railroad Company, Winter and Rosati. Hauser and Raymond filed motions for judgment non obstate veredicto and a new trial which were denied. Plaintiffs filed motions for a new trial against the Railroad Company and Rosati. The lower court of its own motion granted a new trial as to all parties.
Hauser and Raymond appeal and assign as error the refusal of their motions for judgment non obstante veredicto and the grant of a new trial. Winter and the Railroad Company assign as error the grant of a new trial. The plaintiffs assign as error the grant of a new trial to Hauser and Raymond. Rosati took no appeal.
Plaintiffs were injured on May 5, 1949 while working as laborers in the Railroad Company's roundhouse located at 38th and Jackson Streets, Philadelphia, when a section of an overhead steam pipe fell on them. This asbestos covered steam pipe which was four inches in diameter ran around the top of the roundhouse about twenty or thirty feet above the floor and five or six feet from the ceiling. It was suspended from the ceiling by rods which hooked into eyes, the eyes in turn being fastened into the rafters. These rods were then attached to the pipe by encircling collars. The distance between the rods was about ten feet. The purpose of the pipe was to supply heat to the building and in order to accomplish this it was connected by smaller pipes to the radiators which were along the walls.
The Railroad Company being desirous of renovating and altering the roundhouse, entered into a written contract with Hauser, a general contractor. Hauser then employed as subcontractors Rosati, Raymond and Winter. Rosati's specific job was to remove concrete which was in the engine pits of the roundhouse so that the pits could be extended. Removal of this concrete was to be done by a claim shell attached to the boom of a crane, but due to the depth of the concrete, it became necessary to utilize manual labor. Rosati obtained this manual labor from Eastern Construction Co., not a defendant here, and the plaintiffs, who worked with pick and shovel and jack hammer, were engaged in this work when they were injured. Raymond was to drive casings into the ground inside the roundhouse. For this they had a pile driver with a boom and rack through which a four-ton hammer was raised and lowered to pound the casings. Winter was hired to dismantle the radiators which were attached to the steam pipe which fell. In order to complete this work it was necessary to detach the smaller pipes which connected the radiators to the overhead steam pipe. These three subcontractors carried on their work simultaneously.
The evidence showed that the Railroad Company continued, after the renovation started, to run engines into the roundhouse where they took on water and were greased. There was an intimation in the testimony that the steam pipe supplied heat until the radiators were disconnected. The testimony showed that the employes of Raymond in the course of their work hit the steam pipe with the hammer of the pile driver. Because of the size of this machine in comparison with the available space inside the roundhouse, the body of the machine and the operator of it were outside the wall and the hammer inside, being operated through openings in the roof. There was also testimony that employes of Raymond placed ropes around the steam pipe and pulled it to one side. The theory as to negligence of Winter was that its employes would shake the steam pipe during the process of removing the radiators and that some of his men beat the tees which connected the pipes running from the steam pipe to the radiators while dismantling them. There was testimony to this effect. There was also evidence that the operator of the crane and clam shell employed by Rosati struck the pipe with the boom of the crane.
Ordinarily, if the record shows that the interests of justice require a new trial as to all defendants -- and the lower court so states -- an order to that effect will not be disturbed on appeal: Lorenz v. Caste Development Company, 368 Pa. 131, 81 A.2d 887. However, in the instant case we can find no reason substantiating such conclusion. This long and complicated case was properly tried and fairly submitted to the jury. Upon a careful examination of the reasons given in the opinion of the lower court for the grant of a new trial to all parties, we conclude that none of them support the action taken by it. [1] We shall therefore proceed to examine the liability of the various defendants seriatim in the light of the jury's verdict.
The only evidence in the record which relates to the activities of the Railroad Company is the testimony of plaintiff Maddox that the "engines used to go in [the roundhouse] and they used to work on them, and grease them", of the plaintiff Sarne that they took on water, and some vague testimony that the heat for the roundhouse came from the steam pipe until the radiators were disconnected. This, we conclude, as did the jury, is insufficient to hold the Railroad Company responsible for the injuries to the plaintiffs and requires the application of the principle that where a jury has rendered a verdict for a defendant and it appears as a matter of law there is no liability on the part of that defendant, a new trial as to such defendant may not be granted: Fornelli v. Penna. R.R. Co., 309 Pa. 365, 164 A. 54; Brogan v. Philadelphia, 346 Pa. 208, 29 A.2d 671; Fritz, Admrx., v. York Motor Express Company, 358 Pa. 398, 58 A.2d 12.
Plaintiffs argue that the above summarized testimony establishes that the Railroad Company did not discharge its duty to the plaintiffs as invitees in that it did not as owner and occupier keep the premises in a safe condition. The difficulty with this position is the paucity of proof of control possessed or exercised by the Railroad Company. There was no evidence of any control by it over the manner in which the work was to be done. Such evidence is necessary in order to hold the Railroad Company responsible: Allen v. Willard, 57 Pa. 374; Smith v. Simmons, 103 Pa. 32, 36; Silveus v. Grossman, 307 Pa. 272, 161 A. 362; and compare cases relied upon by the plaintiffs, James Pender v. George Raggs et al., 178 Pa. 337, 35 A. 1135, (where the owner forbade the removal of a wall); Weldon v. Steiner, 138 Pa.Super. 66, 10 A.2d 19, (where the owner insisted on a sign being erected after being told that the day was too windy for such work). In both of these cases the owners not only had control but exercised it affirmatively.
Plaintiffs also contend that the record showed that the Railroad Company was responsible for the confining conditions under which the renovation was conducted. Consequently, they argue, the pile driver had to be operated from outside the building and this caused the hammer to strike the steam pipe. There was no evidence that the activity of the Railroad Company within the building was the reason the pile driver operator remained outside or that if he had been inside, the hammer would not have struck the pipe.
As to Hauser, the general contractor, who was held liable by the jury, we must sustain his appeal and here enter judgment in his favor. His liability is...
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