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BITTING v. WOLFE (06/27/51)

June 27, 1951

BITTING
v.
WOLFE, APPELLANT



Appeal, No. 23, May T., 1951, from judgment of Court of Common Pleas of Dauphin County, June T., 1948, No. 142, in case of Margaret C. Bitting Admrx., Estate of Norman C. Bitting, deceased, v. Ray Wolfe and Fanny Farmer Candy Shops, Inc. Judgment affirmed.

COUNSEL

Earl V. Compton, with him F. Brewster Wickersham and Compton & Handler, for appellant.

Martin H. Lock, with him Homer L. Kreider and William M. Young, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Drew

[ 368 Pa. Page 168]

OPINION BY MR. CHIEF JUSTICE DREW

Norman C. Bitting sustained serious injuries while working as an electrical contractor in a store owned by Fanny Farmer Candy Shops, Inc., when two planks used as a walkway separated, causing him to fall. The planks had been put in place by Ray Wolfe, an independent contractor doing plumbing work on the premises. Bitting brought this suit in trespass against Wolfe and Fanny Farmer Candy Shops to recover damages for those injuries. Prior to trial Bitting died and his administratrix, Margaret C. Bitting, was substituted as plaintiff. The jury returned a verdict for plaintiff against Wolfe only. Judgment was entered for plaintiff after she filed a remittitur of all the verdict in excess of $6,647.48 and Wolfe has appealed seeking a judgment n.o.v. or, in the alternative, a new trial.

[ 368 Pa. Page 169]

In June 1946, the Fanny Farmer Company undertook to have certain repairs made to its building located at 341 South Cameron Street, Harrisburg. Accordingly, Bitting was engaged to do the electrical work and Wolfe to do the plumbing work. Both were employed as independent contractors. While making the repairs it was customary for the workmen to use the rear door which opened onto a loading platform approximately four feet high with steps at one end running down to ground level. Part of Wolfe's job was to install a new sewer pipe. In order to do so he had dug a trench which ran the length of the loading platform. Upon completing that work he refilled the trench to within six inches of the top, leaving it in that condition so that it could be concreted over at ground level. He then laid wooden planks across the ditch to provide a walkway. The planks were put in place four or five days before the accident and were used frequently both by the workmen and employes of the Fanny Farmer Company. On June 28th, 1946, Bitting and his brother were carrying into the building a large electric motor which they had repaired. As Bitting stepped onto the walkway the planks separated causing his foot to slip between them and into the ditch. In the resulting fall he received serious and permanent injuries to his left knee and leg.

It is clear that Wolfe as an independent contractor was in possession of the area necessarily occupied by his work and is, therefore, subject to the same liabilities as any possessor of land: Patterson v. Palley Mfg. Co., 360 Pa. 259, 61 A.2d 861; Powell v. Ligon, 334 Pa. 250, 5 A.2d 373. Since Bitting was a business visitor, Wolfe owed him a duty of due care to protect him from injury: Bisson v. John B. Kelly, Inc., 314 Pa. 99, 170 A. 139; Turner v. Robbins, 276 Pa. 319, 120 A. 274. Wolfe urges, however, that there was no evidence to show that the walkway was improperly constructed

[ 368 Pa. Page 170]

    or maintained and hence nothing from which the jury could find that he breached his duty.

This argument is thoroughly refuted by the record. Two witnesses testified that although the walkway appeared safe to the eye the planks were not fastened together and when Bitting stepped on them they separated. None of the boards was broken or in any way defective. From that evidence the jury could find, and obviously did, that Wolfe had failed to properly construct the walkway. Gormley v. Union Pav. Co., 95 Pa. Superior Ct. 78, is identical with this case in all essential details. There, defendant was repairing a street and had laid a temporary crosswalk of railroad ties. As plaintiff stepped from a trolley car onto the ties, the ties separated and she was injured. The Superior Court stated, at pp. 80-81: "... [liability] rests on the evidence tending to show that in view of all conditions present ...


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