Before MCLAUGHLIN, HASTIE and FORMAN, Circuit Judges.
In the present case Barbara P. Wiseman, the widow of Boyd Lee Wiseman and the administratrix of her husband's estate, brought a suit against the United States under the Federal Tort Claims Act*fn1 She has claimed damages under Pennsylvania's Wrongful Death Act*fn2 and Survival of Action Statute*fn3 The essence of her complaint alleges that the Government's negligent maintenance of a window on the fifth floor of the eleven story Victory Building in Pittsburgh, constructed in 1903, caused that window to become loose from its frame, which in turn resulted in the decedent's falling to his death as he was cleaning the window. The United States answered, denying the claim of negligence and alleging that decedent was contributorily negligent.
The United States brought in the decedent's employer, City Service Cleaning Contractors, Inc. (hereafter City Service), as a third party defendant, charging it with (1) being either the sole or joint proximate cause of the accident, by reason of its alleged failure to warn decedent of the dangerous condition of the window or to instruct and supervise him properly in performing his work and (2) with having agreed, under the terms of its contract, to be responsible for all damages resulting from its negligence.
The United States also brought in Zurich Insurance Company (hereafter Zurich), as a third party defendant, charging it with an obligation to pay damages to the plaintiff by reason of an insurance policy taken out by City Service to cover any Government liability with respect to the window cleaning operation.
City Service answered, alleging that its liability is limited to the requirements of the Workmen's Compensation Act of Pennsylvania. Zurich answered, denying any obligation on the insurance contract, because the United States, it contends, did not report the accident or claim until five months after the occurrence of the accident, in violation of the insurance contract.
The District Court held that "the negligence of the United States in maintaining the Victory Building and, particularly the window in Room 501-502 thereof, in a dangerous condition" together with City Service's "inadequate instruction" and failure to furnish decedent "a reasonable safe place to work" jointly caused the accident in question. It further held that the decedent was not contributorily negligent. Plaintiff was awarded judgment against the United States for a total of $41,171 - $39,171 under the Pennsylvania Wrongful Death Act and $2,000 under the Pennsylvania Survival of Action Statute.
The District Court also rendered judgment for the United States against (1) City Service "to the extent of contribution allowed under the law in view of the fact that the liability of City Service Cleaning Contractors, Inc., is limited under the Pennsylvania Workmen's Compensation Act" and (2) Zurich Insurance Company for $41,171 by virtue of the insurance policy.
The United States has appealed the finding that it was negligent and that the decedent was free from contributory negligence. Zurich has appealed both the finding that the accident was the result of negligence and that the United States could recover under the contract of insurance. City Service has not appealed.
The pertinent facts, as found by the District Court, and viewed in the light most favorable to the appellee, as they must be at this stage of the proceedings, are the following:
At the time of the fatal accident the United States owned and controlled, through the General Services Administration (hereafter GSA), the Victory Building. Various agencies of the Government maintained offices there.
From September 1, 1956 through August 31, 1961, the GSA entered into written contracts with City Service to clean windows of the building. One of the clauses of the contract provided that City Service "shall be responsible for all damage to persons or property that occur as a result of its fault or negligence in connection with the prosecution of the work." The contract also required the contractor to add the United States as a named insured on its policy covering performance of the window cleaning services*fn4 The United States was so added to the City Service insurance policy with Zurich.
On January 18, 1960, City Service first employed the decedent as a window cleaner. He was born September 17, 1939. Upon graduating from High School, he had enlisted in the United States Marine Corps and was on active duty for six months. He thereafter worked in a gasoline station at Nutter Fort, West Virginia, and also as an oiler on a coal stripping job at Bridgeport, West Virginia. The decedent married the appellee on February 27, 1959. A child, Lee Ann Wiseman, was born of this marriage on July 4, 1961. Decedent's wife has subsequently remarried.
Pursuant to the contract with the Government, City Service assigned decedent and John Jaros to clean the windows of the Victory Building on Saturday morning, March 25, 1961. This was the first occasion that decedent had cleaned windows there, though he had been in the employ of City Service for approximately 15 months.
Clarence J. Vexler, President of City Service, testified that he realized most of the windows were not equipped with safety hooks and that because of a five foot overhang from the roof, scaffolding could not be used. Mr. Vexler also conceded that he definitely knew several of the windows were in a defective condition. Although he had never received any of the Government's inspection reports, which showed the extremely dangerous condition of the windows, he said he was "guided by our [City Service's] own inspection in preference to any inspector employed by any one else."
At City Service's monthly safety meetings, Mr. Vexler instructed all employees, in general, how to clean windows. The decedent had attended approximately a dozen of these meetings.On the day before the accident, John Veltri, a foreman of City Service, advised decedent that he would be spending the following day at the Victory Building and that its "windows were a different type than he had been used to." These windows, Mr. Veltri informed the decedent, should be cleaned "from the inside." Mr. Jaros also testified that prior to their being dispatched to the building, Mr. Veltri had instructed them to clean the windows from the inside.
Upon beginning work at the building, at 6:00 a.m. of March 25, 1961, Mr. Jaros stated that he had informed the decedent how to clean the windows. But instead of cleaning the windows from the inside, Mr. Jaros, himself, cleaned some of the windows by sitting on the outside sill. Furthermore, it was adduced that decedent could have observed Mr. Jaros cleaning the windows in this manner.
Mr. Jaros stated that the decedent cleaned some of the windows from the outside. A possible reason for cleaning the windows from the outside, instead of the safer inside method, was brought out at the trial: City Service's employees received pay for a certain number of hours regardless of how long they actually worked on the ...