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DE MARCO v. FROMMYER BRICK COMPANY (06/11/64)

June 11, 1964

DE MARCO
v.
FROMMYER BRICK COMPANY, APPELLANT.



Appeal, No. 187, Oct. T., 1964, from judgment of Court of Common Pleas No. 2 of Philadelphia County, March T., 1959, No. 1286, in case of Salvatore De Marco v. Frommyer Brick Company. Judgment affirmed.

COUNSEL

Henry J. Lotto, for appellant.

Sheldon L. Albert, with him James E. Beasley and Alan Schwartz, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Watkins

[ 203 Pa. Super. Page 488]

OPINION BY WATKINS, J.

This is an appeal from the judgment of the Court of Common Pleas No. 2 or Philadelphia County entered on a verdict of a jury in the amount of $5000, in favor of the plaintiff-appellee Salvatore De Marco, and against the defendant-appellant, Frommyer Brick Company, in a trespass action for damages as a result of an accident; and from the refusal of motions for a new trial and judgment non obstante veredicto.

The plaintiff, Salvatore De Marco, was a 43-year old construction worker employed by R.E. Carrick and Company, as an oiler and assistant crane operator. He was working on a construction project known as the Ambassador Town House apartments on November 8, 1957. The defendant, Frommyer Brick Company, was a subcontractor, doing the brick and masonry work on this job. At the time of the accident the concrete for the second floor had been poured and so formed a ceiling approximately ten feet above the ground level. On the ground level, Frommyer's employees were mixing lime, sand and water in a large mixing basin. The top of the area was closed off by the cement ceiling and at the sides by piles of building blocks which formed walls around the area. Frommyer employees would make the mix by throwing entire bags of lime into the mixing

[ 203 Pa. Super. Page 489]

    vat. This caused the mixture "to explode" and cause a fine dust cloud of lime particles to permeate the area. This became thick and dense because of the confined nature of the area. There was evidence that there had been complaints concerning the alleged negligent mixing and that it was dangerous and likely to cause harm. The defendant issued masks to his workmen to protect them from the danger.

On the day in question the plaintiff was walking from the engineer's shanty to a work area, the usual route taken during his work. As he came around one of the "walls" of cinder blocks into the area of the mixing vat he was suddenly engulfed in a cloud of lime dust. He suffered permanent injuries to his throat and nervous system. This action was brought against the Frommyer Brick Company, who, in turn, brought in as an additional defendant, James F. Nolan & Sons. The court directed a compulsory non-suit as to the additional defendant.

There was evidence that the Frommyer employees' mixing method did not conform to a reasonable standard of care in lime handling and defendant's own employee testified that a bag of lime dumped in the mixing box would explode, creating a cloud of smoke that would be dangerous. The plaintiff was hospitalized twice as a result of the accident and was treated by two doctors who diagnosed his condition as a persisting tracheal bronchitis and spasmodic laryngitis with permanent secondary changes in the ventricular bands. He suffers from prolapsed ventricles, spasms, and anoxia and traumatic neuroses were engendered. He was, at the time of the trial, still being treated and there was unequivocal medical testimony that his condition was the result of the accident.

His symptoms included acute paroxysms during which he cannot take in any oxygen and which are so acute his face turns ...


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