The opinion of the court was delivered by: KRAFT
Plaintiff, a New Jersey citizen, instituted this action against North Shore Supply Company (North Shore), and Levitt & Sons, Inc. (Levitt), New York corporations, and Harold H. Farquer, a Pennsylvania citizen, to recover for personal injuries. The action against Farquer was dismissed, with prejudice, before trial.
At the trial neither North Shore nor Levitt offered any evidence. Each filed a written motion for a directed verdict on which the court reserved decision. The case was submitted to the jury which returned a verdict for the plaintiff against Levitt and a verdict for the defendant, North Shore. Thereafter Levitt filed a timely motion to have the verdict and the judgment entered thereon set aside and to have judgment entered in accordance with its motion for a directed verdict. The stated specific grounds for Levitt's motion were: (a) plaintiff failed to establish any negligence of defendants that was an efficient cause of the accident which caused the injury; (b) plaintiff was guilty of contributory negligence; (c) plaintiff, if a mere volunteer, assumed the risks of the work; (d) plaintiff was chargeable with the negligence of a fellow servant; (e) plaintiff's remedy was limited solely to benefits he was entitled to receive under the Pennsylvania Workmen's Compensation Act, 77 P.S.Pa. § 1 et seq.
(a) Plaintiff failed to establish any negligence of Levitt that was an efficient cause of the accident which caused the injury.
From the evidence the jury was warranted in finding the following as fact:
At the time of the accident Farquer was, and for some years previously had been, an employee of Levitt. Though not a graduate engineer, he had abundant practical experience in construction engineering. In April 1952, he was superintendent in charge of construction and installation of sewers and concrete hoppers for Levitt in the development of Levittown, Pa.
A few days before the accident, Farquer was transferred from the task of supervision of the installation of a section of sewer line to that of construction of a dock. This dock on the Delaware River was necessary to facilitate delivery of building materials to the site by ship. While construction of the dock was of primary benefit to North Shore, it was in the regular course of Levitt's business as a developer of large tracts.
Farquer required help and was authorized, for that purpose, to procure some men from Roadway Construction Co., the plaintiff's employer and a subcontractor of Levitt. With the help of some men from Roadway the work of driving the piling began on the morning of April 4, 1952. During the afternoon it became impossible, by the method employed, to drive the piling beyond a certain depth because of an underground strata of large stones along the river bank.
The method of pile-driving adopted by Farquer was alternately to raise and lower the pile by means of a crane boom while a stream of water under high pressure 'boiled out' the river bed where the pile descended. When the troublesome rocky condition became apparent, Farquer decided to improvise by adding more weight at the top of the pile. He placed a piece of 20 inch diameter cast iron sewer pipe as a sleeve over the upper end of the pile. A nearby piece of one inch diameter hemp rope, which was weatherbeaten and not new, was used to secure the pipe to the pile to prevent the pipe from sliding vertically down the pile. This rope supported most of the pipe's three hundred pound weight. The end of the pipe which rested on the rope was irregular, rough and sharp since it had been cut from a larger section.
The plaintiff arrived at the site at this time and began to work under Farquer's instruction. As was foreseeable, the subsequent alternate upward and downward movements of the pile combined with the heavy weight and the rough, sharp edge of the pipe to cut the rope, and the pipe fell. The plaintiff who, at Farquer's direction, was guiding the lower end of the pile was struck and seriously injured by the descending pipe.
As a man extensively experienced in construction engineering including, inter alia, the driving of piling, Farquer was negligent in failing to foresee that this combination of great weight, the sharp, rough pipe-edge, and the weather-beaten rope together with these forceful movements of the pipe and pile created a condition of danger to anyone immediately below the suspended pipe. Even more pointed was Farquer's imprudent failure to inspect either the pipe or the rope before so using them in this mechanical improvisation.
The fact that Farquer placed himself in a position of danger and was also injured did not mitigate the danger of the condition he created but emphasized his carelessness under the circumstances.
(b) Plaintiff was guilty of contributory negligence.
(c) Plaintiff, if a mere volunteer, assumed the risks ...