Urban v. Focht

• Decision Date: 17 May 1911
• Docket Number: 34
• Citation: 231 Pa. 623,81 A. 55
• Parties: Urban, Appellant, v. Focht
• Court: Pennsylvania Supreme Court

81 A. 55

231 Pa. 623

Urban, Appellant, v. Focht

No. 34

Supreme Court of Pennsylvania

May 17, 1911

Argued February 27, 1911

Appeal, No. 34, Jan. T., 1911, by plaintiff, from order of C.P. Berks Co., Aug. T., 1902, No. 83, refusing to take off nonsuit in case of Charles E. Urban, by his next friend and father, Clemens Urban, v. Levi H. Focht. Affirmed.

Trespass to recover damages for personal injuries.

At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, ENDLICH, P.J., filing the following opinion:

The Colonial Trust Co. contracted with defendant for the erection of a building which involved certain work subsequently, by mutual consent, taken out of his hands and given to another party, who engaged the firm of Remppis & Co. to perform a part of it. In the course of its performance by this firm the plaintiff, one of its employees, was injured while using an elevator constructed and operated by the defendant in the prosecution of the work done by him for the use of his employees. The occasion for this was the circumstance that a rope and pulley used by Remppis & Co.'s men for hoisting bolts to the upper floors had been drawn up because the bricklayers had laid boards across the beams, loaded with brick and interfering with the manipulation of the rope. For the purpose of themselves getting to the upper floors Remppis & Co.'s men had been in the habit of using ladders available for that purpose at the time of the accident. Permission was given plaintiff at his request by defendant's foreman to use the elevator in this instance to take up the bolts. It was designed only to raise materials. But there is testimony that in order to take up the bolts it was necessary for some one to go along to hold them in position. There were several loaded wheelbarrows on the elevator at the time. Three of Remppis & Co.'s men got on with the bolts. When part of the way up, the elevator broke. The theory upon which this action was brought against defendant is rather vaguely indicated by the declaration as amended the second time, in the allegations that, being the contractor for the entire structure and engaged in its erection, he "maintained and operated an elevator;" that plaintiff, "in pursuance of his occupation in connection with the erection and construction of the building . . . was lawfully upon said elevator within the scope and performance of the duties of his employment in connection with the . . . erection and construction of said building;" that thereupon it became defendant's duty safely to construct and maintain the elevator; that it was improperly constructed and maintained; and that plaintiff's injury resulted from this circumstance. The nonsuit was asked for and entered on the ground of nonproof of any relation between plaintiff and defendant upon which the responsibility sought to be fastened upon the latter in favor of the former could be legally predicated.

It is certain that the relation of employer and employee did not exist between them. It is contended, however, that the firm employing plaintiff was a subcontractor under defendant in the erection of the building. Suppose that to be so. Then under the doctrine of Johnston v. Ott Bros., 155 Pa 17, there was a duty resting upon the defendant to do his part of the work in the erection of the building in a manner consistent with the safety of the employees of Remppis & Co. and for an injury occurring to one of them through defendant's failure to live up to that duty a recovery might be had against him. But there was no obligation upon him by law, and no evidence of any by contract...