Before MARIS, GOODRICH and McLAUGHLIN, Circuit Judges.
These two actions were brought to recover for injuries sustained by Giannone and for injuries causing the death of Vincent Mallace, whose widow is suing as administratrix. The accident took place at the Fairless Works, United States Steel Corporation, Morrisville, Pennsylvania, June 21, 1952. The men involved in the accident were employees of the Benjamin F. Shaw Company. This company was employed as an independent contractor by the defendant and was engaged in plumbing and heating work in connection with the construction of the Fairless plant.
On the day in question Giannone and Mallace were members of a small crew delivering pipe and picking up surplus pipe in the construction area. They had a truck crane which picked up the surplus pipe and loaded it upon a flatbed trailer truck. The truck crane came to a spot where there was some pickup work to be done. Giannone and Mallace got on the ground preparatory to hooking spreaders into the ends of a piece of pipe which was to be lifted and put on the flat truck. The afternoon was dark and damp. The truck crane had stopped almost beneath a high-powered electric wire owned and maintained by the defendant and the driver of the truck crane lowered the boom so the spreaders could be attached to the pipe. As the two men took hold of the cables they each received an electric shock which killed one and injured the other. There is testimony that the boom of the truck did not touch the wire but that it came perhaps within three feet of it. No one saw any spark or flash from the wire to the crane.
At the close of the plaintiff's case the court dismissed the actions. The district court was right.
The defendant cites to us two Pennsylvania cases to show us that the duty of a landowner to employees of an independent contractor doing work on the land, is very limited. It is said that the injured employee cannot recover against the landowner unless the landowner failed to give warning of nonobvious dangers to the independent contractor. For this proposition Valles v. Peoples-Pittsburgh Trust Co., 1940, 339 Pa. 33, 13 A.2d 19 and Engle v. Reider, 1951, 366 Pa. 411, 77 A.2d 621 are cited.
What neither party cited to us, however, was the latest decision of the Pennsylvania Supreme Court, namely, Cooper v. Heintz Mfg. Co., 1956, 385 Pa. 296, 122 A.2d 699. This decision drastically limits the application of the Valles and Engle cases by confining their applicability to a situation in which the independent contractor has taken over the control of the premises. In the instant case, there is no suggestion that the Shaw Company was in control of the defendant's premises. It was doing work there. Doubtless other concerns were also. The case is not one for the application of the Valles doctrine. The ordinary rule is that the contractor's employee is a business visitor and the landowner owes him a duty of reasonable care to make the premises safe or to give adequate warning. Restatement, Torts § 343 (1934) cited and approved in Straight v. B. F. Goodrich Co., 1946, 354 Pa. 391, 47 A.2d 605 and Miller v. Hickey, 1951, 368 Pa. 317, 81 A.2d 910. The plaintiffs are not to be defeated in this case because of absence of duty on the part of the defendant landowner.
Nevertheless, the plaintiffs have not made out a case entitling them to recover. The argument made in their behalf is that even granted that there is no showing that the defendant was negligent, the doctrine of res ipsa loquitur should be applied to allow them to take their case to the jury. But res ipsa loquitur does not take the place of negligence on the part of the defendant. It simply permits a finding by the trier of the fact that the defendant was negligent in a particular instance.
It was well stated by this Court in Sweeting v. Pennsylvania R. Co., 3 Cir., 1944, 142 F.2d 611, 613, in quoting language from Mr. Justice Pitney from Sweeney v. Erving, 1913, 228 U.S. 233, at page 240, 33 S. Ct. 416, at page 418, 57 L. Ed. 815. The statement is to the effect that res ipsa loquitur "means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference * * * that they make a case to be decided by the jury, not that they forestall the verdict."
One of the requirements for the application of res ipsa loquitur is that it must appeal that in the ordinary course of experience the accident complained of would not have occurred without negligence on the part of the defendant. Jesionowski v. Boston & M.R.R., 1947, 329 U.S. 452, 67 S. Ct. 401, 91 L. Ed. 416. We have no basis whatever for saying that this is the situation in this case. That an electrical charge occasionally jumps from a wire to some other object must be so because we may read about it in so many cases.*fn1 But when it does so and what precautions may be taken to guard against it and whether any precautions were taken here and whether that failure, if there was a failure, was negligent, we have no basis of knowing. We certainly cannot say as a matter of judicial notice that a defendant owning the wire carrying electricity is negligent if an electrical charge escapes from it.And that is what the application of res ipsa loquitur here would require us to do.
Plaintiffs' case fails, therefore, because there is no proof of negligence and there is nothing on which we would be justified in giving the plaintiffs such procedural help as is given by the application of the res ipsa loquitur rule.
The last point made by the plaintiffs is that the trial court erred in refusing to allow as evidence of negligence alleged admissions contained in a third-party complaint the defendant brought against the Philadelphia Electric Company. By this complaint the defendant sought to impose upon Philadelphia Electric any liability which the defendant might have for the consequences of this unfortunate accident. This complaint was subsequently dismissed by stipulation and with court approval. Are statements in a third-party complaint evidence as admission against the defendant?
The question here is to be distinguished from what the writers on evidence call "judicial admissions" which are admissions in pleadings, stipulations, etc. and which do not have to be proven in the same litigation. Wigmore, Evidence §§ 1058, 2588 et seq. (3d ed. 1940); McCormick, Evidence, §§ 239, 242 (1954). However, pleadings which do not amount to judicial admissions - see Wigmore, supra § 2589 - may be used as evidence of factual allegations. By the weight of authority even withdrawn or superseded pleadings are admissible.*fn2 If the third-party suit against Philadelphia Electric be considered as a separate suit from this appeal, there is divided authority admitting into evidence a pleading made in a separate suit not involving the proponent of the evidence.*fn3
Most of the authorities considering admissions as evidence conclude that pleadings today are supposed to be factual rather than fictional and therefore should be regarded as probative and admissible. Frank R. Jelleff, Inc., v. Braden, D.C.Cir., 1956, 233 F.2d 671, 675; Wigmore, supra §§ 1066, 1067, cf. §§ 1064, 1065; McCormick, supra § 242; Morgan, Basic Problems of Evidence 238 (1954).*fn4 Authorities rarely articulate what we believe to be a conflict between the admissions through pleading rule and Rule 8(e)(2) of the Federal Rules of Civil Procedure, 28 U.S.C., which allows inconsistent, alternative and hypothetical pleading. The rules encourage parties to plead not only what they know is factually true, but also any fact if they believe "there is good ground to support it." See Fed.R.Civ.P. 11. This soundly based policy - see Clark, Code Pleading §§ 41, 42, 99 (2d ed. 1947) - would tend to be ...