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LABICK v. VICKER (12/18/62)

December 18, 1962

LABICK
v.
VICKER, APPELLANT.



Appeal, No. 211, April T., 1962, from judgment of Court of Common Pleas of Washington County, Nov. T., 1959, No. 337, in case of Nicholas Labick v. Elmer Vicker, trading as Vickers Chevrolet. Judgment affirmed.

COUNSEL

Francis H. Patrono, with him John W. Edwards, Jr., and Patrono and Edwards, for appellant.

Paul N. Barna, with him Barna and Barna, for appellee.

Before Rhodes, P.j., Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (woodside, J., absent).

Author: Flood

[ 200 Pa. Super. Page 113]

OPINION BY FLOOD, J.

Following a verdict for the plaintiff in this action for personal injuries, allegedly sustained as a result of the breaking of a ladder supplied by the defendant, the court below overruled the defendant's motions for judgment n.o.v. or for a new trial. On this appeal the defendant contends that (1) the plaintiff was guilty of contributory negligence in using the ladder because it was obviously dangerous or defective, (2) the evidence is inadequate to show that the ladder was supplied by the defendant and (3) the court erred in its charge on damages.

Taking the evidence most favorably to the plaintiff, who has the verdict, the jury could have found the following facts: The plaintiff entered into an agreement with the defendant to wash the walls and ceiling of the showroom of his garage in Monongahela. Under the agreement, the plaintiff was to furnish the same services which had been performed for the defendant two years earlier for the same price. Since the plaintiff had no material or equipment of his own, the defendant was to provide all the equipment and material. The plaintiff purchased sponges, paper cleaner and buckets and when he arrived on the job delivered the bills for this material to the defendant. The plaintiff inquired about the equipment and the defendant directed him to ask Bill Posi, who did occasional maintenance and repair jobs for the defendant, where it was located. Posi told him the equipment was stored in another garage showroom owned by the defendant and located on the opposite side of the street. After one of the defendant's salesmen unlocked the door of this storeroom the plaintiff found there two wooden ladders, one four feet and the other six feet in height, and a plank or scaffolding made of two inch by six inch boards nailed together to make a platform. The defendant decided that the four foot ladder was inadequate and directed

[ 200 Pa. Super. Page 114]

    the plaintiff to get a big ladder fro the showroom which was to be cleaned and put it against the wall and then to put the six foot ladder "out in the center". The plaintiff complied and made a platform by fitting one end of the plank into a step on the long ladder against the wall and placing the other end on top of the six foot ladder.

The plaintiff complained to the defendant that the six foot ladder was "too wobbly", but the defendant told him: "We just reconditioned that ladder not too long ago; we put heavy nails in it, and, besides, there were heavier fellows than you worked on that ladder." The plaintiff said he would try it out, and climbed up and started paper cleaning. He said: "It still shakes", but the defendant said: "Keep going; I want to get this job done ... Don't you want this job?" The plaintiff said: "Sure", and started to work. Later the plaintiff told the defendant: "You have to get me another ladder; I can't work on that ladder." The defendant said: "That ladder is safe; we had heavier men than you on that ladder." The plaintiff proceeded to work and after he had worked about 3 1/2 hours, the defendant came into the showroom and the plaintiff again said he wanted another ladder, that it shook too much and the defendant replied: "It's all in your head, you just think that ... That ladder's safe." The plaintiff had started the work on Saturday and the defendant told him to get going, he wanted the work completed while the garage was closed for the weekend.

Approximately one-half hour after his last conversation with the defendant, while the plaintiff was standing on the platform cleaning the twelve foot high ceiling, a stay on the six foot ladder "pulled away from the board", the brace below it "sprung out", the ladder broke under him and the plaintiff fell to the floor. The plaintiff noticed the ladder giving away beneath him, but he did not have an opportunity to get down

[ 200 Pa. Super. Page 115]

    before the ladder broke and fell. The defendant saw the plaintiff fall. The plaintiff said to him, "I told you something was going to happen, - something was going to break," to which the defendant said: "I didn't think that ladder was that weak."

1. The evidence was conflicting as to what caused the plaintiff to fall. He testified, as above noted, that the ladder broke and collapsed, while the defendant and his witness testified that the plaintiff caused the ladder to tip over and fall by overreaching while wiping the ceiling. This dispute was submitted to the jury under appropriate ...


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