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MILLER v. HICKEY (06/27/51)

June 27, 1951

MILLER
v.
HICKEY, APPELLANT



Appeal, No. 216, Jan. T., 1950, from judgment of Court of Common Pleas No. 3 of Philadelphia County, June T., 1947, No. 1967, in case of William Miller v. James L. Hickey. Judgment reversed; reargument refused September 24, 1951.

COUNSEL

Ralph S. Croskey, with him Croskey & Edwards, for appellant.

Donald E. Hogeland, with him Maurice A. Hogeland, for appellee.

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

Author: Bell

[ 368 Pa. Page 318]

OPINION BY MR. JUSTICE BELL

Plaintiff brought an action in trespass to recover for personal injuries. The jury returned a verdict for plaintiff in the sum of $20,000. which was reduced by the court to $15,000. Defendant's motion for a new trial and for judgment n.o.v. was dismissed; judgment was entered on the verdict, and defendant took this appeal.

Defendant is the owner of a three story converted private dwelling at the northwest corner of 19th and Locust Streets, Philadelphia. Defendant entered into a

[ 368 Pa. Page 319]

    contract with plaintiff's employer, an independent contractor, dated June 15, 1946, under which plaintiff's employer agreed to "thoroughly scrape free of all loose and scaling particles... all metal work... including the fire escape" and to paint it with two coats of paint. Plaintiff was a foreman painter who was given charge by his employer of doing this job with three assistants. He testified that he was an expert in rigging and in scraping and in painting iron work, structural iron work, fire escapes and things of that sort; that he was familiar with the whole building trade, including fire escapes, from a boiler room to the finest home ever built in Philadelphia; that the manner of doing the work was left entirely up to him and that neither the defendant nor anyone except plaintiff's boss had any control over him.

Plaintiff and his fellow employees commenced to paint the house on October 14th. On October 15th he commenced work around 8 o'clock in the morning and exactly what happened thereafter is not as clear from the evidence as it should be. The following is a virtually verbatim summary of the pertinent testimony. Plaintiff testified that in order to find out what the conditions or situation was so that he could properly paint it, it was necessary to scrape the fire escape; that he might find that the wood or some of the iron was rotten after scraping it and that you could not paint over rust -- you had to scrape rust before you painted it. The drop, erroneously called counter-balance, which is that part of the fire escape which is dropped and extends to the ground, was down. Plaintiff had walked up the fire escape that morning. With the help of one of his assistants he placed a plank from the extension ladder to the counter-balance along the alleyway which was under the fire escape. The plank was between 15 and 18 inches wide and 20 or 22 feet long and weighed about 25 pounds. The counter-balance was 28 or 30

[ 368 Pa. Page 320]

    inches wide. Plaintiff was working on the fire escape, cleaning, brushing and scraping it and had progressed to approximately 4 to 6 feet from the corner. He decided he needed some paint, turned around, put his left hand on the outside rail, the rail gave way, he grabbed with his right hand to hold on, fell head first, turned almost a complete somersault and landed on the sidewalk at a 30 degree angle.

The part of the fire escape from which he fell is approximately 4 or 5 feet long and ran parallel with the alley. It does not appear how high it was from the ground. The fire escape was made of steel pipe, pretty heavy, and about 2 inches wide. The counter-balance was made of steel and the handrail was a metal pipe about an inch wide.

After plaintiff fell he did not lose consciousness. He saw some evidence of debris and found the uprights on the far corner leading down to the counter-balance. The pipe was corroded and deteriorated at the bottom of the upright and he observed some narrow holes in the pipe. Among the debris there were several screws which had no threads on. He did not see anything wrong with the upright before he touched the rail. The only thing he did was to put his hand on the rail; he wouldn't say he pushed it; it fell out; he lost his balance and went down. He had not been warned by anyone that the fire escape or any part of the building was in bad condition except that it needed paint; neither defendant nor anyone knew, prior to the accident, that the fire escape or any part of the building was in bad or dangerous or defective condition.

Plaintiff repeated that before the accident happened the only thing he could see that was wrong with the fire escape or any part of it was that it and the whole building needed to be painted and that was what he was there for.

[ 368 Pa. Page 321]

Concededly, the defect was not a structural one and the plaintiff and defendant and the court below all considered and treated the defect as a latent one of which neither plaintiff nor defendant had any knowledge.

Plaintiff produced three witnesses who were working with him on this job, James E. Moran, Edmund Meyers, and Cecil Rutter. None of them saw the accident but each looked up when they heard plaintiff scream. After plaintiff was taken to the hospital Moran saw debris and pipes and a whole section of the fire escape which was missing; he saw the end upright and both rails on the ground, after they had hit the ground, and the force of the impact had knocked all the loose scales and things off; the pipe was corroded, almost rusted through; in bad condition. Then Moran examined the fire escape. "It was very corroded, and one part -- I went up, the inside rail right by the counterbalance, above the counter-balance, which would be on the inside wall, I gave a yank at it with my hand, and I pulled it away from the wall." It was not part of the same line that went overboard when Miller fell but it was part of the same structure on the inside. The part or fastening Moran pulled away from the wall was very rusted; "Also, the wood it was fastened to was very poor. It was weather-beaten, and these little screws had no hold at all in there, they just came right out."

Defendant's theory of the accident is that which was set forth in Moran's written statement made several weeks after the accident (viz. November 5, 1946), in which he blamed the plaintiff's fall on the fact that when he and the plaintiff placed the plank over the railing of the fire escape, plaintiff put his weight against the rail and the railing gave way. However, the jury obviously believed Moran's (very different) testimony at the trial and therefore his prior written statement cannot be considered by any Court on a motion for judgment n.o.v.

[ 368 Pa. Page 322]

Meyers saw plaintiff immediately after the accident and accompanied him to the hospital. On his return approximately three-quarters of an hour later he examined the part of the rail which had been attached to the fire escape ladder and which was lying on the ground. That part had sheared right off down where the joints are; then you could see the corrosion of the metal. The upright pipe was on the handrail probably in the middle of the section that was snapped off at the edge. Meyers did not see any other part of the fire escape on the ground except that piece of outside railing and it was the metal upright that broke off at the bottom.

Rutter saw plaintiff when he was in the air, falling. After the accident he saw on the ground the outside railing of the counter-balance and a section or about two parts of the fire escape was out. The outside rail of the counter-balance and the ladder hand-grab that goes into the building -- he examined these parts and found they were rusting away.

This was all of plaintiff's evidence with respect to negligence.

The defendant offered in evidence the testimony of a maintenance inspector, William E. Blake, who was employed by Albert M. Greenfield & Co., defendant's real estate agent, to inspect fire escapes of properties in Philadelphia of which Greenfield & Co. were the agents, and to report anything which needed correction. Both plaintiff and defendant, strange to say, relied on the inspector's testimony. Blake was a maintenance inspector of buildings, external, internal, fire escapes and towers. He inspected the defendant's fire escape sometime in June 1946 and again in the middle of September 1946, 4 months and 1 month prior to the accident. He found nothing wrong with the building or the fire escape except that the exterior should be painted and he recommended that the exterior of the building be painted and the fire escape be scraped and

[ 368 Pa. Page 323]

    painted. Both in his inspection in June and in September he went up to the top of the building, came out through the fire tower, walked down the fire escape, "looking for any loose bolts or broken rails or anything of that kind, put my hands on the rail at different places, and if I find nothing loose, I do not recommend anything other than possibly to paint or a scrape job." He especially tried the counter-balance to see if it would go down and come up. He inspected the fire escape for safety and found it was in good condition and, except for scraping and painting, was satisfactory and he was satisfied that if there had been a fire in that place the occupants could have escaped by way of the fire escape. He looked for loose bolts or missing bolts or broken rails or anything of that kind; he saw some rust but no evidence of pitting. If he sees something that he thinks is pitted he takes out a double opener penknife and scrapes away the metal. He did not use his knife on either of these inspections because he didn't see any reason to do that since he could tell or thinks he could tell with his eyes. There was no rust on the piece of the fire escape that was broken off and lying on the ground when he examined it the afternoon of the accident and no evidence of pitting at that particular point, but it looked like it had been a shearing off of some kind.

It will be instantly noted that plaintiff did not prove or offer to prove that the inspection made by Blake was not a proper one or was not one that was customary in the trade, or that a proper inspection would have disclosed the dangerous or ...


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