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October 10, 1960


Appeals, Nos. 9, 14 and 22, March T., 1960, from orders of Court of Common Pleas of Allegheny County, Jan. T., 1953, No. 1190, in case of Albert J. Greco v. 7-Up Bottling Company of Pittsburgh et al. Order in appeal No. 9 affirmed; orders in appeals Nos. 14 and 22 reversed; reargument refused November 23, 1960.


George Y. Meyer, with him George I. Buckler, and Meyer, Darragh, Buckler & McDonnell, for defendant, appellant.

V. C. Short, with him Clem R. Kyle, for additional defendant, appellant.

Sanford M. Chilcote, with him Dickie, McCamey Chilcote & Robinson, for defendant, appellant.

D. E. Harrington, with him James P. McArdle, Gene K. Lynch, and McArdle, Harrington & McLaughlin, for plaintiff, appellee.

Before Bell, Musmanno, Jones, Cohen and Eagen, JJ.

Author: Jones

[ 401 Pa. Page 438]


In a trespass action for personal injuries the court below, upon the plaintiff's motion and after a jury verdict against one defendant and in favor of the two other defendants, granted a new trial as to all three defendants and refused a motion for judgment n.o.v. filed by the defendant who had lost the verdict. This action of the court below is the basis of these three appeals.

On August 25, 1952, Sigmund Yahr owned a three-story building located at 5850 Ellsworth Avenue, Pittsburgh, a building which, at that time and during a seven year period prior thereto, was under lease to the 7-Up Bottling Company [herein called Bottling Company]. In February 1952, Yahr had entered into a contract with Harold S. Sauers, trading as Real Estate Maintenance Company [herein called Maintenance Company] to paint certain window frames on the exterior of the building and, pursuant to this contract, Albert Greco [plaintiff] and John Pappas, Maintenance Company employees, were at the time of accident - August 25, 1952 - engaged in performing this work. At the time of accident Greco and Pappas were placing a thirty-six foot extension ladder against the sill of a window located in the third floor of the building, this window being approximately twenty-five feet above the surface of the ground. The ladder consisted of two eighteen-foot sections and, in order to reach this third floor window, it was necessary that one section be extended seven or eight feet above the other section. In so doing, Pappas held the

[ 401 Pa. Page 439]

    ladder with his back to the building and Greco, standing on the second or third rung from the bottom of the ladder, was manually pushing the extension upward. Greco alleges that, when the top of the ladder came in contact with the window sill, a piece of wood*fn1 and a cast iron sash weight became dislodged, fell to the ground and one or the other or both struck him on the head inflicting severe injuries.

Greco instituted a trespass action in the Court of Common Pleas of Allegheny County against Yahr and the Bottling Company and Yahr then joined the Maintenance Company as an additional defendant. At trial the jury returned a verdict of $15,000 in favor of Greco and against Yahr as well as verdicts against Yahr and in favor of the Bottling Company and the Maintenance Company. As to all three defendants the court below granted a new trial an refused Yahr's motion for judgment n.o.v. From these orders the present appeals were taken.

Yahr takes the position that he is entitled to judgment n.o.v. inasmuch as there was insufficient evidence upon which the jury could find that he, the owner out of possession of the premises, was guilty of any negligence. The Bottling Company contends: (1) that since Yahr, the building owner, without its knowledge arranged to have the Maintenance Company paint the exterior woodwork of the building, it, the tenant in possession, would not be liable to Greco, an employee of the independent painting contractor, by reason of any latent defective condition of the window frame; (2) that, inasmuch as the Bottling Company's liability was submitted under proper instructions to the jury and inasmuch as the jury absolved

[ 401 Pa. Page 440]

    it of any liability and held Yahr, the building owner, liable, the grant of a new trial as to the Bottling Company was an abuse of discretion; (3) the absence of one of Greco's trial counsel from the courtroom on two or three occasions during the trial did not justify the grant of a new trial. The Maintenance Company's position was that there was no evidence of any negligence on its part and that the court below abused its discretion in granting a new trial as to it.

The opinion of the court below set forth its rationale for the grant of a new trial: (1) the verdict of $15,000 was inadequate; (2) the absence on two or three occasions of Greco's chief trial counsel because of an engagement in the Federal court deprived Greco of the legal advice and counsel to which he was entitled; (3) the jury's verdict exculpating the Bottling Company was against the charge of the court and the evidence.

In considering these appeals the scope of our appellate review varies. Upon Yahr's appeal from the refusal of the court below to grant his motion for judgment n.o.v., the testimony must be read in the light most favorable to Greco, all conflicts therein must be resolved in his favor and he must be given the benefit of all facts and reasonable inferences therefrom deducible: Kuhns v. Brugger, 390 Pa. 331, 335, 135 A.2d 395. However, in considering the appeals from the grant of a new trial, this rule ...

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