Before KALODNER, STALEY and SMITH, Circuit Judges.
Defendant A. M. Byers Company has appealed from a judgment entered pursuant to a jury's verdict*fn1 in a diversity action brought by the plaintiff, administrator of the estate of Albert Tucker, deceased, for recovery of damages under the Pennsylvania Wrongful Death*fn2 and Survival Acts*fn3, following the District Court's denial of its motions for judgment N.O.V., or in the alternative, for a new trial.
Tucker, a 23-year old carpenter's helper, employed by Allegheny Contracting Industries, Inc. ("Allegheny"), was killed on February 3, 1959 when a trench caved in while he was assisting one May, carpenter in charge, in shoring a part of it. The trench was being excavated by Allegheny at the South Side plant of A. M. Byers Company in Pittsburgh, Pennsylvania, as part of a sewer construction project pursuant to a written contract awarded to Allegheny. As the contract, in Section 2.04 described A. M. Byers Company as "Engineer" it may hereinafter be referred to in that manner.
Since jurisdiction is based on diversity, Pennsylvania law governs.
The facts as to the accident itself are detailed in the District Court's opinion reported at 222 F.Supp. 475 (W.D.Pa.1962). They may be summarized as follows:
The trench was to be 20 feet deep and 5 feet wide. (The record does not disclose its length). At the time of the accident about 25 feet of the trench had been shored; 8 to 10 feet remained unshored. Tucker assisted May in constructing "forms" for the shoring; each form was about 10 feet long and 5 feet wide; the "forms" were lowered into the trench one on top of the other to form a supporting frame work for the shoring planks or sheeting which were then secured along the sides of the excavation. The cave-in was due to the fact that the shoring planks were too short and the bracing was too small*fn4, and as a consequence the shoring twisted or shifted throwing the "braces out of square and they collapsed."*fn5 Tucker "had but little experience in the type of work in which he was engaged", and "His classification was that of a semi-skilled laborer."*fn6 The issue of his contributory negligence was left to the jury with the instruction that the plaintiff could not recover if the jury found Tucker to have been guilty of contributory negligence.
It must immediately be noted that on this appeal it is undisputed that the shoring operation was negligently performed, as the jury found it to be.
It should be added that the case was tried under the theory advanced by plaintiff's counsel that the applicable law was that found in Section 414 of the Restatement of Torts, which provides in sum that one who entrusts work to an independent contractor but retains control of any part of the work is subject to liability for the contractor's negligent performance which causes bodily harm to others.
The District Court charged the jury in accordance with this theory. It also instructed the jury that it might find the retention of control under the terms of the contract.
On this appeal the defendant urges (1) that under Pennsylvania law right of control is insufficient to establish liability in the absence of the actual exercise of control and that here there was no exercise of control; (2) that the contract did not establish right of control but the contrary; (3) that the District Court erred in not construing the contract and leaving it to the jury to do so; (4) that the issue of contributory negligence was improperly submitted to the jury, and (5) that the District Court erred in permitting the contract to go to the jury without deletion of its provisions with respect to liability insurance.
First, as to the contention that right of control is insufficient to establish liability, and that exercise of control is essential to establish liability on the part of the employer of an independent contractor:
In Spinozzi, Pennsylvania Threshermen & Farmers' Mut. Cas. Ins. Co., Intervenor v. E. J. Lavino and Company, 243 F.2d 80 at page 82-83 (1957) we said:
"The Pennsylvania courts have recognized that the employer should be liable where he has retained control of some part of the work, or so interfered with the performance of the job as to have assumed control, and his failure to exercise that ...