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December 20, 1962

Antoinette MONTESANO, Adm'x of the Estate of Frank Montesano, deceased, Plaintiff,
PATENT SCAFFOLDING COMPANY, Inc., a corporation, Defendant and Third-Party Plaintiff, v. Charles COST and Anthony Cost, t/d/b/a Cost Brothers, Third-Party Defendants, v. H-M CONSTRUCTION COMPANY, INC., Third Party Defendant and Third-Party Plaintiff, v. MESTA MACHINE COMPANY, Third-Party Defendant

The opinion of the court was delivered by: MCILVAINE

Viewing the facts in the light most favorable to the plaintiff and to the verdict, it appears that plaintiff's decedent was a forty-three year old bricklayer employed by the third party defendant, Cost Brothers. At the time of the accident out of which this litigation grew, the plaintiff's decedent was working for Cost Brothers on a job at the Mesta Machine Company plant. He along with several other co-workers had been engaged in the erection of brickwork on the outside of a building. This work was being done from a scaffold that had been erected beside the building. The scaffold had been built to a height of approximately fifty feet, and at the top of the scaffolding between the scaffold and the building were hung sidewall brackets. Planks were placed on top of the scaffolding and the brackets to form a platform upon which the men could work.

 It appears that the decedent, Frank Montesano, was working at the extreme end of the platform and was standing over or almost over one of the brackets. The decedent along with other workers had been engaged in placing parapet stone on the roof, and at the time of the accident they were putting the last stone in place. The other workers, a Mr. Champ and a Mr. Mastrangelo, handed a stone weighing approximately two hundred pounds to the decedent and a coworker, and as this stone was handed to them the entire platform suddenly gave way and fell to the ground. The jury could find that the planks did not break nor did the decedent and the co-worker drop the stone on the platform prior to the collapse. The decedent and his coworker met their death as a result of the fall.

 The bracket in question was introduced into evidence, and it showed that the clamp or hook had been bent. The theory was that the brackets when placed on the scaffolding appeared to be in good condition and were properly installed. There was no question that the defendants manufactured this bracket and rented it to Cost Brothers.

 There was testimony from a registered professional engineer who gave his opinion that the bracket was of an unsafe design for use by bricklayers or stone masons at a height of fifty feet above the ground because the design was of such a manner that it would become partially or completely dislodged by normal impact shock.

 The theory under which plaintiff's counsel tried this case was that of a chattel made under a dangerous plan or design as set forth in Section 398 of the Restatement of the Law of Torts, as well as Section 388 of the Restatement of the Law of Torts. It was not seriously contested in this case by either party that these principles of law were not applicable of this case.

 Voluminous briefs have been filed by all parties to this litigation and extensive arguments have been held, and if we are to comment on each particular argument and contention of each party our opinion would almost fill a volume of the Federal Supplement. We think it more appropriate if we could go to what we judge to be the crux of the defendant's argument and discuss it.

 The crux of the defendant's argument was set forth when he took an exception to the Court's charge where the defendant urged that even if the jury would find that the bracket in question was manufactured under a dangerous design, nevertheless, there could be no recovery against the defendant if Cost, the decedent's employer and the one who leased the brackets in question from defendant, knew, or if the defendant had no reason to believe that Cost would not know the full measure of the bracket's dangerous design and characteristics. He urged that if Cost knew of the bracket's dangerous design then the jury should be instructed that they should find in favor of the defendant.

 At the time this Court instructed the jury it considered this contention of the defendant and rejected it as it is no supported by reason or authority. After consideration of the briefs and arguments of counsel for defendant, we still reject that argument. Very basically, if the defendant's contentions were accepted, Sections 395 and 398 of the Restatement of the Law of Torts would be meaningless words.

 The defendant contends that merely giving the knowledge to Cost or Cost's actual knowledge would be sufficient to insulate it from liability in this case. The effective warning given to third persons is discussed in Comment (1) to the Restatement of the Law of Torts, Section 388. The comments contained therein clearly show that a supplier of chattels where the risk of harm to the actual user of the chattel, Montesano in this case, is great, then the supplier is required to go further than merely to tell the lessee of the chattel such as Cost of the dangerous character of the article. If he fails to exercise reasonable care under the circumstances, if the information is not brought home to those whom the supplier expects to use the chattel, he is subject to liability. The jury in this case was instructed on the standard of reasonable care, and on the requirements of Section 388. They applied the instructions to the facts, and reached a verdict which is supported by the evidence.

 In considering defendant's motion for a directed verdict, this Court has heretofore said that:

 "To justify withdrawing a case from they jury, the conclusion must follow as a matter of law that no recovery can be had on any view which can properly be taken of the facts which the evidence tends to prove, and there must be no evidence before the jury, either strong or weak, tending to prove the issue on the part of the one against whom the direction is requested."

 We further stated in that case:

 "The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. Washington & Georgetown R. Co. v. McDade, 135 U.S. 554, 571, 572 (10 S. Ct. 1044, 1049, 34 L. Ed. 235); Tiller v. Atlantic Coast Line R. Co., supra, (318 U.S. 54) 68 (63 S. Ct. 444, 87 L. Ed. 610); Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 354 (63 S. Ct. 1062, 1064, 87 L. Ed. 1444). That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have ...

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