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GAYNE v. PHILIP CAREY MANUFACTURING COMPANY. (06/25/56)

June 25, 1956

GAYNE, APPELLANT,
v.
PHILIP CAREY MANUFACTURING COMPANY.



Appeal, No. 172, Jan. T., 1956, from judgment of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1952, No. 6976, in case of Roderick I. Gayne v. Philip Carey Manufacturing Company. Judgment affirmed. Trespass for personal injuries. Before ALESSANDRONI, J. After disagreement by jury, judgment on record entered for defendant, opinion by REIMEL, J. Plaintiff appealed.

COUNSEL

Cormac J. Malloy, with him Gray, Anderson & Schaffer, for appellant.

Thomas E. Comber, Jr., with him Pepper, Bodine, Frick, Scheetz & Hamilton, for appellee.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold.

Author: Bell

[ 385 Pa. Page 619]

OPINION BY MR. JUSTICE BELL

Plaintiff brought an action in trespass against defendant, who was a building contractor. Plaintiff is an electrician who is in the employ of a sub-contractor who at the time of the accident was engaged in construction work on a building at Tabor Road and Harrison Street, Philadelphia. On February 21, 1951, plaintiff erected a scaffold which was supported on one end by a ladder and on the other end by an open door, against one side of which some material belonging to the defendant had been placed. Plaintiff was standing on the scaffold; the scaffold gave way; plaintiff fell and was seriously hurt. The jury was discharged because of failure to agree on a verdict. The Court entered judgment (on the record) in favor of defendant, and from this judgment plaintiff took this appeal.

From plaintiff's testimony, which of course must be taken with all reasonable inferences therefrom in the light most favorable to him, this is what happened: Plaintiff got a ladder approximately 7 feet high and a scaffold board 10 or 11 inches wide, 2 inches thick and approximately 9 feet 6 inches long. He grabbed hold of the door, which was open at a 135 degree angle (3/4ths open) to see if it was solid, which it was - it didn't move forward or backward by pulling on it. There were carton boxes, possibly 3 feet high, with a burlap bag on top of them, in front of the door on which there was a door value. Plaintiff "picked up my end of the scaffold board and put my foot on the burlap bag for a brace, grabbed the door for added leverage, raised the scaffolding

[ 385 Pa. Page 620]

    board and put it on the center of the door." His partner picked up his end of the scaffold board and raised it up on top of the ladder. Plaintiff was going to work on a fixture which was one foot to the right of the pipe room door, one foot to the right of the door jamb, and five feet out. When plaintiff was working on the scaffold the door was to his left, the ladder was to his right, and he was facing the opening of the door. Three times he heard another door open and shut and a hand truck, possibly 4 feet long by 2 1/2 feet wide, came in and out. The boys pushing this truck were doing pipe covering work. When plaintiff was finished with the connections and ready to hang the fixture "I grabbed the stem [in the fixture] and picked it up off the scaffolding board. I started picking it up when I felt a lurch in the scaffolding board. The scaffolding board was disturbing me. I hurried up furiously to get the fixtures secured and save myself from falling. I tried to use the lock nut. However, I could not catch that lock nut. The plank board came downward on the other side - . Q. Did you see this board slide or slip? A. I could feel the lurch when it went down on the left side or door side. Q. What happened then? A. Then I skidded down the board and landed on my feet, still holding the fixture. In the meantime, it broke my wrist, and I had to drop it. I am looking at the door. It had closed up. ... I looked around and no material was around the door that held it open previously." Plaintiff did not state what caused the scaffold to fall, or when the door closed, or what caused it to close, nor did he ever tell anyone that the boxes were holding the door in position - if they were - or not to remove the boxes.

"'... "The mere happening of an accident is no evidence of negligence. ... Plaintiff has the two-fold burden of proving that the defendant was negligent and

[ 385 Pa. Page 621]

    that his negligence was the proximate cause of the accident" ...': Lanni v. P.R.R. Co., 371 Pa. 106, 109, 88 A.2d 887": Brusis v. ...


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