Appeal, No. 170, Jan. T., 1949, from judgment of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1946, No. 1249, in case of The Pennsylvania Railroad Company v. J. Jacob Shannon & Co. et al. Judgment affirmed.
J. Peter Williams, with him Barnes, Dechert, Price & Myers, for plaintiff appellant.
Leon J. Obermayer, with him George B. Clothier and Edmonds, Obermayer & Rebmann, for J. Jacob Shannon & Co., defendant, appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
This is an appeal from the refusal of the court below to remove a non-suit entered against appellant in favor
of appellee (defendant) and the additional defendants.
The Pennsylvania Railroad Company (appellant) brought an action in assumpsit against J. Jacob Shannon & Co. (appellee) for the sum of $3,900.00, with interest. The De Vincentis Construction Company and Anthony De Vincentis were joined as additional defendants but are not parties in this appeal. The case was tried before a judge without a jury.
On March 9, 1942, the railroad company and the Shannon Company entered into a written contract. The contract consisted of a letter written by the railroad company to the Shannon Company and accepted by it in writing endorsed on the letter. By the terms of the letter, the railroad company requested Shannon Company to furnish the railroad with "equipment for the construction of new South Philadelphia Terminal Yard, Philadelphia, Pa." The equipment required consisted of a Truck Crane, with the operator, to be supplied by Shannon Company and an "Allis-Chalmers 'L O' type oil burning Crawler Tractor with bulldozer". The operator was also to be supplied by the appellee. Payment of the wages of the crane operator (an employe of Shannon) was included in the rental contract. The operator took his orders for the performance of the railroad company's work from its supervisor.
The contract contained the following provisions:
"The Contractor (i.e., Shannon Company) will furnish and maintain Workmen's Compensation Insurance and the Railroad Company will ...