a work shack on the premises. Kolyn's representative further testified that United had no control over Oesterberg, nor any control over the work gangs and the performance of the work done by these gangs. Kolyn did all of its own hiring and firing and Kolyn hired Oesterberg. United was not in exclusive control of the work done on this job even though it was the general contractor. United's inspectors only approved or disapproved the results of Kolyn's work.
The duty of a possessor or occupier of land toward business visitors is set out in the Restatement of Torts, § 343, entitled Dangerous Conditions Known to or Discoverable by Possessor, which states:
'A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he
'(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and
'(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and,
'(c) invites or permits them to enter or remain upon the land without exercising reasonable care
'(i) to make the condition reasonably safe, or
'(ii) to give a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive, if the possessor is a public utility.'
The duty imposed by this section as applied to the facts of the instant case required United to warn Kolyn, its subcontractor, of the alleged vicious nature of Oesterberg if Kolyn had no knowledge of this alleged viciousness. A general contractor such as United was not required to warn every employee of Kolyn of this alleged dangerous condition. Valles v. Peoples-Pittsburgh Trust Co., 339 Pa. 33, 13 A.2d 19 (1940); Engle v. Reider, 366 Pa. 411, 77 A.2d 621 (1951). United was not required to warn Kolyn, if the record demonstrated that Kolyn had knowledge of Oesterberg's animosity toward Chamberlin.
Assuming that the plaintiff's evidence is true, we have his own words that he had complained on several occasions to the partners of the Kolyn Construction Co., Messrs. Teenas and Mattson, concerning the alleged vicious propensities of Lennie Oesterberg. There is no evidence which shows that the plaintiff ever complained to any representatives of United. This leads the Court to the indisputable conclusion that Kolyn, who alone had control of Oesterberg, had notice of his alleged vicious nature from the plaintiff himself. Therefore, United was not obligated to warn Kolyn of this fact which it already had firsthand knowledge from the most interested party, Mr. Chamberlin.
At the close of the plaintiff's case, the defendant moved for a directed verdict. Later, at the close of all the evidence, the defendant renewed its motion for a directed verdict under Rule 50, which was denied. This Court is of the opinion that it was error to have submitted this case to the jury, as there is no material question of fact in this record, requiring a jury's determination. Therefore, this Court believes that the defendant is entitled to its motion for judgment on the whole record
AND NOW, this 18th day of January, 1963, IT IS ORDERED that the defendant's motion for judgment under Rule 50(b) of Fed.R.Civ.P. is granted.