the jury as to the duty of Cost as the employer of Frank Montesano, deceased. Of course, we must remember that this part of the charge concerned common law liability, and the defendant's liability was, of course, limited to the extent of contribution allowed by law. Naturally in view of the Workmen's Compensation Laws existing throughout this country, there are not many reported cases dealing with the common law duties of the employer to the employee, and that was what was involved in the third party claim. Of course, there is a common law duty by an employer to furnish his employee with a reasonably safe place to work. Counsel for Cost do not contest this. In regard to the duty of furnishing the decedent with a safe place to work, the Court charged as follows:
'In addition it is alleged that the third-party defendant, Cost Brothers, was negligent in that it failed to furnish the Deceased with a safe place to work. Under the law a continuous duty exists on the part of an employer such as the third-party defendant in this case, Cost Brothers, to use ordinary care in furnishing its employees with a reasonably safe place within which to work. The amount of caution required by that duty varies in direct proportion to the danger involved in the work. Putting the matter another way, the amount of prudence required of the third party defendant, the Deceased's employer, in the exercise of ordinary care to furnish its employees a reasonably safe place within which to work increases or decreases as the danger is known to exist, or that reasonably should be apprehended. Therefore, if you find that Cost Brothers breached this duty, that is, that they were negligent in failing to furnish the Deceased a reasonably safe place to work and that this negligence concurred with the negligence of the original defendant, Patent Scaffolding, and that both parties' negligence was a proximate cause of the accident, then you would make a finding in favor of Patent Scaffolding Company and against Cost Brothers for contribution.'
This statement of the duty of furnishing a safe place to work is the same that this Court uses in defining the duty of the employer railroad in a Federal Employers' Liability Act case, and the language found in California Jury Instructions, Section 303-A. It is a short, succinct and easily understood instruction which adequately and clearly defines the employer's duty.
It also must be remembered that this case arose within the Commonwealth of Pennsylvania, and it is the law of Pennsylvania that must be applied. We endeavor to do this, and we find that the few reported cases in Pennsylvania concerning the employer's common law duty of furnishing his employee with a reasonably safe place to work are in accord with what we instructed the jury. See the cases of McCombs v. Pittsburgh & W. Ry. Co., 130 Pa. 182, 18 A. 613, and Bier v. Standard Manufacturing Co. (Appeal of Standard Manufacturing Co.) 130 Pa. 446, 18 A. 637.
The counsel for Cost admits that the charge was given in what he terms technically correct language, but he suggests that, nevertheless, it necessarily misled the jury. With this contention we just cannot agree. We think the charge was adequate, fair, and in no way misled. Accordingly, the motion of Cost Brothers for a new trial must be denied.
This leaves the last contention, and that is the motion of Patent Scaffolding as against H-M Construction Company in which it seeks a new trial against H-M Construction Company, a third party defendant, whom the Court had previously dismissed from the case. There is nothing more that could be stated at this point other than what we had said when the motion was made at the trial. At the conclusion of the testimony in the case, we held that we could find no basis for holding H-M Construction Company, Inc., in as a defendant in this case. There was no evidence of a breach of any duty on their part, and the motion was granted, and there is no reason to grant a new trial.
In addition, we have considered the amount of the jury's verdict, and we do not think it excessive, but adequate under the circumstances, and a new trial cannot be granted on the basis of an excessive verdict in this case.
An appropriate order will be entered.
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