Appeals, Nos. 272, 273, 300, 301, Jan. T., 1957, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1954, No. 1476, in case of Helen E. Dunn, administratrix of the estate of Alfred H. Dunn, deceased v. Atlantic Refining Company et al. Judgment affirmed with limited new trial ordered.
John J. McDevitt, 3rd, for appellant.
George E. Beechwood, with him Joseph J. Murphy, and Beechwood, Lovitt and Murphy, for appellee.
William C. Thompson, with him Thompson & Daly, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE MUSMANNO
On December 17, 1953, Alfred H. Dunn, with three others of a four-man stevedore team, was engaged in an operation which hoisted steel drums, by means of a mechanical winch, from the Atlantic Refining Company pier in the Philadelphia harbor up to the deck and into the hold of a steamship bearing the poetical and melodious name of "Robin Goodfellow." While six of these drums, or steel barrels, were aloft, at the height of twenty feet, one of them, weighing 450 pounds, slipped from the hooks by which it was held, fell and struck Alfred Dunn, killing him instantly.
The drum belonged to the Atlantic Refining Company and the stevedoring work and being done by Murphy-Cook and Company. The administratrix of Dunn's estate brought wrongful death and survival actions against the Atlantic Refining Company which brought in the Murphy-Cook Company as an additional defendant.*fn* After the Trial Court gave binding instructions
in behalf of the additional defendant, the jury returned verdicts in favor of the plaintiff. The defendant has now appealed, asking for judgment n.o.v., or for a new trial which will enable it to proceed against Murphy-Cook for contribution.
There is no basis for judgment n.o.v. The Atlantic Company delivered to the stevedores at the pier a steel drum with a defective rim or flange, called in the trade a chime. The chime at either and serves as anchorage for grappling hooks which, like clawed hands at the end of a long arm, lift the drum into the air. A segment of the flange on the fateful drum was dented in such a manner that it could offer no resistance to the grasp of the hook. Although the hook was first attached to a part of the flange which was intact, it slipped to the damaged section, as the drum, companioned by five others, rose above the pier. Two of the longshoremen saw the hook sliding to the flattened and unresisting portion of the flange when the drum was only two and one-half feet above the pier. They lifted their voices in the proverbial "Look Out." This was echoed by a deckhand aboard the "Robin Goodfellow," but the warning was too late. The winch operator had thrown his lever, the group of six drums shot upwards, the hook on the tragic drum slipped to the battered part of the rim, lost contact, and the drum plunged, felling Alfred Dunn who, caught between the ship at his back, the mooring pole and drums at either side, and the pier housing in front, was unable to escape. The three other stevedores scurried to safety.
The jury found, and it was justified in doing so, that the Atlantic Company did not exercise the care required by law when it delivered to the dock a drum in such condition that sooner or later, as it started on its journey to distant points on the globe, ...