and it stayed there. The engineers of the broadcasting company fitted it with the necessary elements and equipment, and stood by while defendant, plaintiff's subcontractor, proceeded with the erection. Defendant's sole job was to place the broadcasting company's antenna mast on the broadcasting company's tower which was erected on the broadcasting company's premises. As in Duhrkop Oven Co. v. Tomay, 3 Cir., 9 F.2d 281, defendant was simply operating under a contract to erect an antenna mast. It is crystal clear that under the facts of the case no bailment of the antenna mast was intended or created between the broadcasting company and plaintiff, the general contractor, and obviously the relation of bailor and bailee as between the broadcasting company and defendant could not be created by the subcontract entered into between plaintiff and defendant. Accordingly, no further consideration need be given to this phase of the case.
Defendant undertook the responsibility of erecting this antenna mast atop the tower constructed by the plaintiff. The broadcasting company, the owner, stood by, in the persons of its manager and chief engineer, to make sure that nothing was done in regard to the placing of the lifting cables around the mast or in raising it which would be likely to endanger the mast itself or the equipment which they had installed. The choice of equipment used, the timing, and the various details incident to the actual erection was defendant's sole responsibility.
The gin pole selected by defendant for use in the erecting operation was 58 to 60 feet in length and made of tubular steel. Defendant also used a standard power winch and engine of a one and one-half ton Ford truck. The winch had a hoisting power of 5000 pounds, although defendant testified that he had actually used it for 7500 pounds. The antenna equipment weighed approximately 1800 to 2000 pounds.
Defendant describes the final operation as follows:
'Very little wind, clear and sunshiny at the time. We had spent practically all morning collecting our rigging, hooking on the antenna, and we knocked off for lunch, with the intention of starting the antenna right after lunch. We came back after lunch, took a strain with the power winch, tied on our tag lines in order to hold the antenna away from the tower, and then we took a strain on the antenna, lifting it up almost to a vertical position. I would say the tip end was fifteen or twenty feet above the ground.
'Two of my iron workers then took hold of the lower end of the section and tried to walk it closer to the tower. It became heavy then,we had to take another strain. It was during this second strain that the pole started bending. It kept going and didn't stop. We all ran.
The mast, which had been raised to the point where the top was about 15 to 20 feet from the ground, fell down and part of it struck the bed of the winch truck. After the accident the gin pole was bent over at an angle of about 45 degrees. An inspection by General Electric Company's (the manufacturer) field engineer developed that the mast was damaged beyond repairs. The mast was then returned to the manufacturer for salvage and a new mast delivered to the broadcasting company, which with the aid of a wooden gin pole was erected by defendant without incident.
Defendant testified, without contradiction, that the tubular steel gin pole which failed in this operation had been used by him successfully on other jobs, and had been subjected to greater strain and without supporting guys, such as he had used in this situation. He further testified that he had checked all the guys, that there were no defects, that the sway was in normal limits, and nothing in the operation to show any departure from normal and safe procedures.
In rebuttal, plaintiff produced as an expert Atkinson, who defendant contends is nothing more than a steeple jack. Atkinson testified that he had been engaged as a steeple jack since 1914; that this work involves high structures, high aerials, tops of buildings, masts and steeples, and stacks; that he has placed many antenna masts on towers, although he has never done tower erection. In answer to a hypothetical question, Atkinson found considerable fault with defendant's operation. He was of the opinion that the gin pole did not extend a sufficient distance above the tower; he criticized the fastening of guy lines to one point as 'shoemaker rigging;' he stated a strong preference for wooden gin poles, indicating that he had no experience with steel gin poles and did not know what was meant by a 'steel rigger.'
Defendant gave a convincing step by step account of the various movements involved in the erection operation. He testified, without contradiction, that the gin pole which failed on April 15, 1948, had been used by him on other jobs, in the same manner and with complete success, with greater strain and without supporting guys. For instance, on the WCAU job on top of the Philadelphia Savings Fund Society Building in Philadelphia, the weights erected with this gin pole were 2700 pounds each, two of them, whereas the weight in the instant case was only between 1800 and 2000 pounds. He stated, furthermore, that this sectioned pole was of the same length on that job, with the same extension above the top of the tower and the same sway of five feet, and he had no trouble, although no guys were used on the gin pole; that he had checked all of the guys and there were no defects, the sway was in normal limits, and on cross-examination no testimony was elicited to show any departure from normal and safe procedure.
I feel that plaintiff has failed to meet its burden of affirmatively proving negligence on the part of the defendant.
Conclusions of Law
1. The parties are properly before the Court, and the Court has obtained jurisdiction of the parties and the subject matter of this suit.
2. The defendant was an independent contractor for the purpose of lifting the antenna mast on the day of the accident, and the mast was not in his possession as a bailee when the damage occurred.
3. The plaintiff failed to meet its burden of proof to establish that the plaintiff was damaged through negligence on the part of the defendant, his agents, servants, or employees.
4. Under all of the evidence, the verdict must be for the defendant.