Appeal, No. 3, May T., 1951, from judgment of Court of Common Pleas of Dauphin County, Jan. T., 1948, No. 106, in case of Rubin Brothers Waste Co. v. Standard Equipment Company. Judgment affirmed.
Douglass D. Storey, with him Earl V. Compton, Samuel Handler, Storey & Bailey and Compton & Handler, for appellant.
Thomas D. Caldwell, with him Caldwell, Fox & Stoner, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
Rubin Brothers Waste Co., appellant, instituted this action in trespass against Standard Equipment Company to recover for the loss of its building, equipment,
fixtures, stock and supplies, sustained when its building was burned, allegedly as the result of the negligence of appellee's agent in the welding of a steel "I" beam to an upright steel column for the support of a roof upon an addition to appellant's warehouse building. A trial was had before a jury which returned a verdict for appellee.
Appellant filed its motion for a new trial asserting error in the charge of the trial judge with regard to (1) assumption of the risk by appellant as the result of a telephone conversation between Dale Dentler, an officer of appellee, and Robert Rubin, vice-president of appellant; (2) refusal of the trial judge to approve, without qualification, a point instructing the jury that the only danger of fire of which appellant was aware was that caused by spalls*fn* falling directly down from the weld, that there was no evidence that the fire was caused thereby, and, therefore, no assumption of the risk of the fire; (3) permitting the jury to determine that William Pinter, an employe of appellant, had authority to erect guards against fire by spalls or sparks; and (4) allowing the jury to find that appellant, by reason of the telephone conversation, had agreed to provide men to guard against fire. The motion for a new trial was refused, final judgment entered and this appeal taken.
Rubin Brothers Waste Co., on May 29, 1947, was engaged in the purchase and sale of rags, paper stock and scrap, and in connection therewith maintained a one-story steel frame building at 3315 North Sixth Street, Harrisburg. A one-story cinder block addition thereto was in the process of construction. Robert Rubin, vice-president of appellant company, on that date, called the office of Standard Equipment Company,
engaged in the business of welding contractor, and spoke with Dale Dentler, a foreman. After the nature of the welding to be done was described, Dentler testified that he requested permission to send two men in addition to the welder to guard against any fire hazard that might arise by reason of spalls falling down, but that Rubin advised him that he ...