Appeal, No. 270, March T., 1960, from judgment of Court of Common Pleas of Westmoreland County, Oct. T., 1954, No. 66, in case of Mary E. Polinelli et vir v. Clyde Hileman et al. Judgment affirmed; reargument refused May 24, 1961.
B. Patrick Costello, with him Robert W. Wertz, and Smith, Best and Horn, for appellant.
John D. Lyons, Jr., with him Avra N. Pershing, Jr., Henry E. Shaw, and Scales and Shaw, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN.
The plaintiffs, Mary E. Polinelli and Arthur A. Polinelli, her husband, sued the defendants, Clyde Hileman, an individual, and Union Supply Company, a corporation (hereinafter referred to as Union), to recover for personal injuries suffered by the wife-plaintiff through alleged negligence of the defendants. The verdict of the jury awarded the wife-plaintiff the sum of $15,500 against the corporate-defendant, Union, and found in favor of the defendant, Hileman. Motions for judgment non obstante veredicto and a new trial were dismissed. From the judgment entered on the verdict, Union appeals.
In considering the merits of the motion for judgment non obstante veredicto, the testimony must be read in the light most advantageous to the jury winner: Titusville Trust Co. v. Johnson, 375 Pa. 493, 100 A.2d 93 (1953); Borzik v. Miller, 399 Pa. 293, 159 A.2d 741 (1960). Viewed in this light, the record discloses that the jury could find the following facts: Union was engaged in building and selling houses on a tract of land which it owned. It entered into a contract with the defendant, Hileman, to furnish the carpentry work necessary in the construction. Others were engaged to do the plumbing, the heating, the electrical work and the other necessary portions of the finished houses. No general contractor was employed. Union's employees supervised the work as a whole.
The plaintiffs signed a sales order to buy one of these houses. Before the execution and acceptance of the order, the wife-plaintiff informed the sales representative of Union that certain changes would be necessary in the plans and specifications of the kitchen in order to make possible the installation of their present gas refrigerator and gas stove. Union's representative assured her that the changes would be made. Union contacted Hileman and directed him to discuss the proposed
changes with the purchasers. Accordingly, Hileman sought out Mrs. Polinelli and arranged to meet with her at the property on a certain day and hour for this purpose. When she arrived, Hileman was not yet there. Men were working in the house; she knocked at the door and was invited inside. This was her first visit to the premises. She walked through the living room, where carpenters, employees of Hileman, were laying flooring, into the kitchen. Here three men were busy covering the floor with linoleum. These were employees of Union. As she entered, there was a "carpenter's horse" standing perpendicularly in the doorway between the living room and the kitchen. There was room for her to walk around it. Because she was in the way of the work being done in the kitchen, she remained there only a few minutes and started to retrace her steps back into the living room. An employee of Hileman was, at the moment, sawing hardwood flooring on the "carpenter's horse" in the doorway. As she walked behind him his arm bumped her, threw her off balance causing her left leg to fall into an open and unguarded register opening. She was seriously injured. This open hole had existed for a period of four or five days previously and was located in the living room floor seven inches from the doorway leading to the kitchen. When the wife-plaintiff first entered the kitchen, it (the hole) was hidden from view by a covering of hardwood flooring and tools. She did not see it and was not aware of its existence.
In the construction of the houses, Hileman came into contact, at least four or five times every day, with one Frank Barron, field manager for Union. The latter told Hileman when to begin and where to build the houses. He also directed how the work was to be done, specified the materials to be used and offered general supervision. Hileman ...