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January 21, 1963


Appeals, Nos. 214, 249 and 250, March T., 1962, from orders of Court of Common Pleas of Allegheny County, Oct. T., 1957, No. 479, in case of Francis L. Gregorius v. Safeway Steel Scaffolds Company of Pittsburgh and Harry M. Weber, individually and trading and doing business as Weber Painting Company. Orders affirmed.


P. J. McArdle, and with him Frank J. Kernan, for plaintiff.

Hamilton A. Robinson, with him Dickie, McCamey, Chilcote & Robinson, for corporate defendant.

Wallace E. Edgecombe, with him Royston, Robb, Leonard, Edgecombe & Miller, for individual defendant.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.

Author: Eagen

[ 409 Pa. Page 580]


The plaintiff was seriously injured in the course of his employment through the use of defective equipment furnished his employer by a third party. He instituted this action for damages against the supplier of the equipment. The latter joined plaintiff's employer as an additional defendant. At trial, the jury awarded plaintiff a substantial verdict against the original defendant. The additional defendant was exonerated by the jury. Post trial, the court below directed a new trial between the plaintiff and the original defendant, limited to the question of damages. From this order, the plaintiff appeals. The original defendant appeals from the orders of the court denying judgment in its favor notwithstanding the verdict and refusing to direct that the additional defendant be a party to the second trial.

[ 409 Pa. Page 581]

The factual background of the accident may be capsuled thusly:

The plaintiff is a painter by trade and was directed by his employer, Harry Weber, the additional defendant, to assist in painting the interior of a church for which Weber had the contract. The scaffolding equipment was furnished and erected by the original defendant, Safeway Steel Scaffolds Company of Pittsburgh, a corporation.

The equipment consisted, in part, of towers extending into the air, approximately 37 feet from the floor. These were connected by walkways, consisting of two "picks" running from one tower to another. Each "pick" was 22 feet long, 1 foot wide, made of wood with slats as the walking surface, supported by rungs underneath which doweled into the side rails. Each side rail was reinforced with a steel rod running lengthwise.

The domed contour of the walls and ceiling of the church was such, that it was impossible to reach and paint every portion thereof from the deck or platform of the towers or the walking surface of the "picks." The position of the congregational pews on the floor of the church rendered it impossible to move the towers.

In order to reach one of these difficult or inaccessible portions of the church interior, the plaintiff and a fellow employee moved a "pick" onto the deck of the tower and projected it out approximately 4 to 5 feet in the direction where the work had to be done. It was then securely tied down to the steel framework of the tower on the work side, while plaintiff's fellow employee sat on the "pick" at the opposite side of the tower in order to hold the "pick" firm. At this juncture, the 22 foot "pick" projected out 4 or 5 feet on the side where plaintiff was working, with 7 feet of its length supported by the tower itself and with 10 feet

[ 409 Pa. Page 582]

    extending out on the opposite side of the tower. When the plaintiff stepped out 2 or 3 feet on the projected portion of the "pick" to paint, it suddenly snapped off and he was plummeted with great force to the floor and pews beneath. He suffered painful and very serious permanent injuries.

A subsequent examination disclosed that several of the "picks" furnished by the original defendant were in a very defective condition. The particular one causing plaintiff's fall had been split some time before at the point of fracture involved herein, it being evident that a saw cut had run a half inch deep into the side rail at this point.

Judgment n.o.v.

The original defendant admits that the evidence is amply sufficient to support the finding by the jury that it was guilty of negligence. The only contention raised on appeal in favor of its motion for judgment non obstante veredicto is that, under the facts, the plaintiff was guilty of contributory negligence as a matter of law. With this position, we cannot agree. The question was for the jury.

Certain appropriate principles of law are fundamental: (1) That the jury winner is entitled to every fact and inference of fact which may reasonably be deduced from the evidence, Metro v. Long Transportation Co., 387 Pa. 354, 127 A.2d 716 (1956); (2) That the question of contributory negligence should not be taken from the jury's consideration except in a clear case and only where the contributory negligence is so clearly revealed that reasonable minds cannot legitimately differ as to the conclusion of its existence: Chicago Express, Inc. v. Robson, 405 Pa. 207, 174 A.2d 846 (1961); and, Greco v. 7-Up Bottling Co. of Pitts., 401 Pa. 434, 165 A.2d 5 (1960); (3) One does not have to anticipate that another will negligently cause him

[ 409 Pa. Page 583]

    injury, in other words, he is not bound to guard against lack of ordinary care on the part of another, Schofield v. Druschel, 359 Pa. 630, 59 A.2d 919 (1948); Fleischman v. Reading, 388 Pa. 183, 130 A.2d 429 (1957); and, Mutter v. Slaymaker, 404 Pa. 369, 171 A.2d 779 (1961).

In the instant action, the plaintiff had every reason to rely upon the fact that the original defendant had furnished equipment in good condition, which was reasonably safe for the purpose of performing the job to be done. The day of the accident was the very first occasion he had cause to use it. The lighting in the church furnished by chandeliers, which hung far below the height of the temporarily erected towers upon which the plaintiff was working, cast their light downward towards the floor. The fact that he did not ...

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