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July 25, 1958

Harry MIGIAS, Administrator of the Estate of George Migias, Deceased, Plaintiff
UNITED STATES of America, Defendant and Third Party Plaintiff (M. A. MALAMOS and George Atsalis, Individually and Trading as Malamos & Atsalis, a partnership, Third Party Defendants)

The opinion of the court was delivered by: WILLSON

Plaintiff brought suit against the Government under the Federal Tort Claims Act. In its answer, the Government admits that jurisdiction of this court is conferred under the provisions of that Act, being 28 U.S.C.A. § 1346(b). After the suit was filed, defendant by motion and order under Rule 14 brought in M. A. Malamos and George C. Atsalis, individually and trading as Malamos & Atsalis, a partnership, as third party defendants.

The facts and the conclusions of law will be found in this opinion pursuant to the provisions of Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C.A., and they follows: On June 18, 1954, defendant acting through the Pittsburgh District Corps of Engineers, U.S. Army, entered into a written contract with M. A. Malamos and George C. Atsalis for painting the back channel service bridge, Emsworth Lock and Dam, Ohio River, Pennsylvania. George Migias was an employee of the contractors Malamos & Atsalis. While at work on the dam at Emsworth for his employers on July 28, 1954, decedent met his death when he fell from a wooden scaffold suspended from a crane into the Ohio River and drowned. Plaintiff is the administrator of the estate of the decedent George Migias. Decedent was unmarried. He is survived by his father, Harry Migias, his mother, Jane Migias, three adult married sisters, one single sister and an adult brother. At the time of his death he was twenty-five years of age, weighed 165 pounds, was in good health except for an ulcer, and lived with his parents in their home in the City of Pittsburgh.

 The parties litigant have agreed that the contract was executed in Pennsylvania and that the substantive law of Pennsylvania is the law to be applied in this case.

 The decedent at the time of his death was working upon a swinging scaffold or platform 76' X 73' X 33' which was constructed by an employee of the defendant, the United States Government, in 1942, owned by the defendant, used by the defendant's employees in connection with the inspection and maintenance of the bridge at the Emsworth Dam, and loaned to the contractors for the purpose of painting the bridge. It was constructed of fir lumber; the vertical posts were made of four inch by six inch lumber fastened with spikes, railings were of 2' X 4' boards fastened with spikes, with diagonal braces constructed of 2' X 6' boards fastened with spikes. The scaffold was suspended from a crane supported by a steel cable leading from four eyebolts three feet long fastened to the 4' x 6' joists with nuts and washers. The scaffold had never been painted, nor had any protective coating been applied to it. When it was not in use, it was kept by defendant on the top of the bridge in the open weather.

 Although the contract provided that the contractors would provide all equipment, on oral agreement was made whereby defendant loaned this particular scaffold to the contractors to be used by them and their employees in performing the contract work, because this was the first bridge and dam painting project undertaken by the contractors Malamos and Atsalis, and they had no scaffolding or other suitable equipment to use in the work.

 Decedent's co-worker on the scaffold at the time of the accident was Clyde J. Clark, Jr. About 3:50 P.M., on a clear day, decedent and Clark were about to quit work for the day. They had been using the scaffold suspended over the side of the bridge and had signaled to the crane operator, who was out of their view, that they were ready to be pulled to the deck. Clark did not observe decedent actually commence his fall, but from his testimony it can be inferred that as decedent leaned back to signal the craneman to hoist the scaffold, the wooden railing came apart, causing the decedent to plunge into the river and drown. The decedent fell to the river at the upstream side, very close to the lock, with only about one inch of water flowing over the dam. He fell about 33 feet into the water and did not come to the surface, although Clark saw him struggling to swim up. There is a section about 12 1/2 feet below the surface of the water in back of the dam where water goes through tunnels or gates about 30 inches high. At the point of the fall, the water creates an undertow and this took decedent's body downward. And though decedent struggled, as observed by Clark, he was caught in the undertow in the sill of the tunnel and even though the water was low at that time of the year and immediate rescue operations were engaged in, the body was not recovered for some time after the accident. Plaintiff's Exhibits 3 and 4, showing the dam, were most helpful in noting the reason for the undertow and the several photographs of the scaffold and its manner of use which were introduced into evidence are most revealing. An inspection of the photographs, together with the other evidence, leads this court to conclude that the scaffold was not properly designed or built for use some twelve years after its construction on this particular painting job. Further, it was not in a good state of repair at the time it was put into use by the contractors. Eyebolts on four corners of the scaffold to which were attached wire lines on use tended to draw the boards inward or together, thus putting a strain upon the wooden railings and corner posts which had been exposed to the atmosphere for some twelve years. The portion of the railing which gave way fell into the river with the decedent. Where the railing came apart, the spike holes had rotted so that the spiking did not hold the rail or braces together.

 The photographs of the point where the rail gave way showed decayed wood where the planking had been nailed to the upright posts. Further, the spiking had been done from the inside out, so that any push against the rail from the scaffold tended to push the rail, not against the head of the spike but towards its point, or outward. Because of the manner of construction, that is by nailing of boards or planks only, without a surrounding support and the resulting decay because of being exposed to the weather, the sides of the rails of the scaffold were loose and easily gave way. Especially after the railing had been further loosened by the strain of the cable pulling the four corners together in the use of the scaffold by the contractors and their employees.

 On July 21, prior to the accident, a meeting was held on the deck of the bridge over the dam at which Government representatives, particularly Government Safety Engineer Kissell and the contractor George Atsalis inspected the scaffold. The Safety Engineer noted at that time that the railing was loose and indicated to the contractor that it was up to him to maintain and keep the scaffold in good repair. The Safety Engineer's words were, 'I told him that it was his responsibility to maintain it and that he must maintain it as frequently as necessary, maybe daily, maybe more often than daily.' Atsalis, the contractor in charge of the work, made inspection of the scaffold, prior to its use by decedent. There is evidence that Clark and decedent made some repairs to the scaffold before using it on the afternoon of the accident. On the morning of that day, decedent and Clark had not used the scaffold, but it had been used by Mr. Atsalis. However, the repairs made to the scaffold consisted mainly of driving more nails or spikes into the wood in an attempt to make more secure the board or planks making up the railing or siding of the scaffold. Mr. Kissell made no reference to any specific repairs, nor did he suggest surrounding the outside of the railing with a wire cable to hold the rails in place. The men discussing repairs all seemed to have in mind that the only thing to do was to drive more nails into wood which was already in the process of decay and thus it should have been apparent that the nails would not do the job.

 It is to be noticed at this point that this court is proceeding under the principle of law found in the Restatement under Torts, Negligence, Section 392. In this section under Comment, Illustrations: 1 reads as follows:

 '1. Employs B, a painter, to repaint his residence. The contract provides that B be allowed to use the ladders which A has upon his premises. C, an employee of B, while using one of these ladders, is hurt by a defect which although not readily observable, could have been discovered by the exercise of a reasonably careful inspection. A is liable to C.'

 Section 392 of the Restatement as cited is believed to be the substantive law of Pennsylvania, as the Pennsylvania appellate courts usually follow the Restatement.

 The evidence indicates that the scaffold had been used on at least several occasions by the contractors and their men prior to the accident to Migias. There was some variance in the evidence as to whether decedent had been upon the scaffold prior to the afternoon in question. Clark said they had worked on it six or seven times. Atsalis, on the other hand, indicated that the afternoon in question was the first occasion that decedent had worked from the scaffold. The number of times the scaffold had been used by decedent has some bearing on the issue of contributory negligence. Defendant has set up contributory negligence as a defense and had the burden to prove it by a fair preponderance of the evidence. Proof on this phase of the case is wanting insofar as this defense is concerned. The situation is presented where an employee of a contractor is required to use equipment furnished by the Government. As noted in the illustration found in the Restatement, the fact is that the defects were not readily observable but could have been discovered by the exercise of a reasonably careful inspection. It is the opinion of the court that the Safety Engineer Kissell was aware that the scaffold was very apt to weaken under the intended use. He warned the contractor as to inspection and repair. The scaffold, built in 1942, had been subject to weather for a period of at least twelve years. Decay of the wood was inevitable. It was apparent from the testimony that pounding more nails into the boards was insufficient precaution. But that was all that was expected of the contractor, decedent or his co-worker. A wire cable put around the outside of the railing would have prevented the outward collapse of the railing. This is what the Government did do after the accident, but it should have been done before. Under all the evidence, I find that the United States was negligent in permitting the contractors to use the scaffold under the circumstances shown in the evidence. The testimony and the photographs clearly show that decedent's fall was caused by the collapse of a rickety piece of equipment, which by aging and weather had become dangerous for the use intended.

 Defendant contends that decedent was contributorily negligent in not wearing a lifesaving belt or equipment. I believe the answer to that contention is that a life belt would not have prevented the fall and it is apparent that under conditions in the water it is mere speculation to contend that a life belt would have prevented decedent from drowning. He was pulled under the water by great suction. He only fell a comparatively few feet. His co-worker saw him struggling in the water, indicating that he was not unconscious from the fall, but the tragic part of the accident was that the point where he struck the water was so close to the lock or tunnel as to prevent him from struggling to the surface and thus extricating himself. The rescuers had to expend considerable effort to free the body from where it was lodged. I find that no contributory negligence is to be found against decedent because of failure to wear a life belt.

 Damages: Plaintiff as administrator is claiming damages under both the Pennsylvania Wrongful Death Act of 1855, 12 P.S. § 1601 et seq., and the Survival Act of 1937, 20 P.S. c. 3 Appendix, § 771 et seq. Also, a claim is made for the funeral and burial expenses. The evidence as to damages under the wrongful death statute supports a moderate award on behalf of the surviving parents. As indicated, decedent was a single man, twenty-five years of age, and had recently returned from the military service. While in service, he had contributed $ 50 a month to his mother. Since return from the service, he had regularly given his parents $ 30 to $ 35 each week. He made his home with his parents, which was owned by them, but he had contributed $ 700 to its purchase. He also took care of repairs to the home in addition to the monetary contributions. Decedent's earnings for the calendar year 1953 were $ 4,786. His father, age 65, was retired and living on a miner's pension of $ 100 a month. His mother, although her age was not given, appeared as a witness and seemed to be approximately the same age as her husband. The ...

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