Appeal, No. 49, Jan. T., 1963, from judgment of Court of Common Pleas of Lehigh County, June T., 1957, No. 176, in case of Steven J. Hader v. Coplay Cement Mfg. Co., Kennedy Van Saun Mfg. & Eng. Corporation and Lloyd S. Keifriter. Judgment affirmed.
Lewis R. Long, for appellant.
Donald E. Wieand, with him Richard W. Shaffer, and Butz, Hudders, Tallman & Wieand, for appellees.
Maxwell Davison, with him Efron & Davison, for Lloyd S. Keifriter, appellee.
Before Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
On and prior to May 24, 1955, Coplay Cement Mfg. Co. (Coplay) owned and operated at Coplay, Lehigh County, a cement manufacturing plaint and stone quarry. Contemplating improvements and additions to its facilities, Coplay on September 22, 1954 entered into
a written contract with Kennedy Van Saun Mfg. & Eng. Corp. (Kennedy), a concern which has a plant and factory at Danville, Pa., for the manufacture and delivery by Kennedy, inter alia, of a two and a quarter million pound stone crusher to be located on coplay's land. This stone crusher was manufactured and, in the late winter or early spring of 1955 (possibly March, 1955), was delivered to Coplay in accordance with the contract.
This stone crusher was to be installed in an open, uncovered pit or quarry, with the top of the crusher approximately at ground level and the base of the crusher 30 th 35 feet below surface in the quarry, approximately a quarter of a mile from Coplay's plant but upon Coplay's land. This crusher was to be housed in a building which was to be approximately 50 feet high. For the unloading, assembling, and installation of the stone crusher and erection of the building to house the crusher Coplay had entered into a contract with Lloyd S. Keifriter (Keifriter), payment for such work to be on a "cost plus" basis.
Upon delivery by Kennedy to Coplay of the manufactured stone crusher, Keifriter began the work of installation and erection provided under the Coplay-Deifriter contract. By May 24, 1955, Keifriter had begun the erection of the building to house the crusher and by the date this building, 50 feet high, was roofed and partially sided although most of the sides of the building were still open. By that date the crusher itself had been set in place, inside of and at the base of the building, above the open pit or quarry. The work of installation of the crusher was still in progress and bolts and other materials necessary to secure the crusher had not been completely attached.
What might be termed the outer face of the crusher, circular in shape and known as the spider, was in place and surrounded by steel girders. Beyond these girders,
on the same general level, was a concrete area for walking - this area surrounded the girders and spider - and surrounding this concrete walk was a four foot high concrete wall. The top of the spider was six inches higher than the level of the surrounding girders; from the spider to the girders was a space of approximately 24 inches; from the girders to the concrete walk was a space of approximately 30 inches. All the space between the concrete walk and the girders and the girders and the spider were open.
On May 24, 1955, Steven J. Hader, the plaintiff (Hader), was employed as a millwright by Keifriter and had been so employed for a number of years.*fn1 On that date at about 8:20 a.m., Hader was carrying a large bolt - 36 inches long, 1 1/2-3 inches in diameter and weighing 60 pounds - from the concrete walking area over the girders to the spider for the purpose of inserting this bolt in the spider. There had been a drizzling rain that morning and, by reason of the fact that the sides of the structure which housed the crusher were for the most part open, moisture had formed on the girders and the spider and this moisture together with what appeared to be dust, ostensibly coming from cement plants in the vicinity,*fn2 caused a slippery condition on top of the girders and the spider. Hader stepped from the concrete walking area to a girder and, attempting to step from the girder to the spider, he
placed his right foot on the spider, slipped and fell through the open space between the spider and the girder, falling a distance of approximately 35 feet into water located at the base of the crusher which was at the bottom of the pit or quarry. As ...