Appeals, Nos. 179 and 180, March T., 1955, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1951, No. 2946, in case of Elizabeth Townsend v. City of Pittsburgh et al. Judgment affirmed.
Louis Dadowski, with him J. Frank McKenna, Jr., for appellant.
Wallace E. Edgecombe, for appellee.
A. H. Rosenberg, with him Rosenberg & Rosenberg, for appellee.
Before Stern, C.j., Stearne, Jones, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
In this action of trespass for personal injuries suffered by plaintiff in a fall on a city street, the jury returned a verdict for plaintiff against the city and for the city against the additional defendant, John A. Johnson & Sons, Inc. (herein called "Johnsons"). The court below refused the city's motions for judgment n.o.v. and new trial, but entered judgment n.o.v. for Johnsons.*fn1 The city appeals.
By contract with the United States Government, Johnsons, as general contractor, proceeded in 1950 to construct the Veterans Hospital in the city of Pittsburgh. The contract provided, inter alia: "c. Transportation Facilities. The Contractor shall make an investigation of available roads and streets, ... and ... conditions affecting the transportation of materials ... to the site ... [It] will be required to limit the loads
hauled over Brackenridge Street and other streets in the immediate vicinity of the project to the degree necessary to maintain the surface of these streets, and to maintain and restore the streets in a manner satisfactory to the City... [and] will secure ... all necessary permits for the use of City streets ..." (Italics supplied).
Johnsons then contracted with Turpin & Stewart, for a consideration of $488,000, to excavate, fill and back fill for the building, and to remove rubbish from the site. This contract provided that Turpin & Stewart would perform their work "under the direction of [Johnsons] ... and to the satisfaction of the architect, the owner of the premises, and [Johnsons]." (Italics supplied).
From October, 1950, and continuing through and beyond April, 1951, trucks under the supervision of Turpin & Stewart hauled dirt and rubbish over a number of streets including Enfield Street. At the point of its intersection with Morewood Avenue, as at other places on the streets, the heavy hauling created holes and ruts. Turpin & Stewart placed over the holes at this point a plank which was used by pedestrians to go from Enfield Street to Morewood Avenue. On August 10, 1951, some 3 months after the hauling ceased, as the plaintiff walked over the plank, it tilted and caused her to fall, as a ...