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decided: May 3, 1965.


Appeal from order of Court of Common Pleas of Montgomery County, No. 61-11019, in case of Peter Millili v. Alan Wood Steel Company.


Thomas J. Burke, with him James S. Kilpatrick, Jr., and Haws & Burke, for appellant.

Charles A. Lord, with him Harry T. Rosenheim, Jr., John A. McMenamin, and Richter, Lord, Toll & Cavanaugh, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Eagen and Mr. Justice Roberts concur in the result. Concurring Opinion by Mr. Chief Justice Bell. Concurring Opinion by Mr. Justice Jones. Mr. Justice O'Brien joins in this opinion. Concurring Opinion by Mr. Justice Cohen.

Author: Musmanno

[ 418 Pa. Page 156]

On August 20, 1961, Peter Millili, the plaintiff in this case, lost his right hand, or a good part of it, when a crane passed over it as he was performing a paint job in the mill of the Alan Wood Steel Company. He brought a trespass action against Alan Wood Steel and the jury returned a verdict in favor of the defendant. Millili moved for a new trial which was granted by the court en banc on the basis that the trial judge had erred in failing to instruct the jury that, if the operator of the crane was guilty of reckless or wanton misconduct, the plaintiff could recover regardless of any possible contributory negligence.

The defendant Alan Wood Steel appeals, seeking reversal, contending that the plaintiff had not requested the trial judge to charge on reckless or wanton misconduct, that he took no specific or general exception to the charge and that the failure to charge on the subject in question was not such fundamental and basic error to warrant a new trial.

In Patterson v. Pittsburgh Railways Company, 322 Pa. 125, this Court said: "Inadequacy of a charge may be taken advantage of on general exception where the instructions omitted are vital to a proper conception by the jury of the fundamental principles of law involved . . . Indeed, even in the absence of a general exception the appellate court of its own motion may reverse because of basic and fundamental error."

In Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 145, Justice Jones, speaking for the Court, pointed out that: "Upon appellate review we are not bound by the reason or reasons advanced by the court below in support of a judgment or order for it is the judgment or order itself which is the subject of review." and quoted Chief Justice Woodward, who said, in Thomas v. Mann, 28 Pa. 520, 522: "The only error upon the record is a wrong reason for a right judgment; but, as we review

[ 418 Pa. Page 157]

    not reasons but judgments, we find nothing here to correct."

The pertinent rule was even more forcibly declared in Sherwood v. Elgart, 383 Pa. 110, 115: "The rule here applicable is that a correct decision will be sustained if it can be sustained for any reason whatsoever; in other words we will not reverse in such a case even though the reason given by the Court below to sustain its decision was erroneous."

On the whole record we find that the action of the court below in ordering a new trial was proper.

The instrumentality involved in this case was a mill crane which, contrary to the make-up of most vehicles, usually travels on a track which is above rather than below the traveling apparatus. The crane operator thus cannot always see the track over which his machine moves. On the day of the accident here in controversy, Millili was standing on a suspended scaffold some 50 feet above the ground, engaged in painting the underside of the structure sustaining the crane and track. To apply the brush to the painting surface it became necessary for him to bend over and, in doing so, it became equally necessary that he cling to something. He clutched with one hand the crane track rail above him as he leaned over painting with the other hand. Before he began this particular movement, he noted that the crane was in a stationary stance some three or four feet away from him. Suddenly and without warning it moved toward him and, in the plaintiff's words, "he cut my hand right away." The operator stopped the crane and the plaintiff exclaimed to him: "What have you done to me? My hand is cut off." The operator replied: "I didn't realize that you were there."

The operator testified that he did see a man standing on the scaffold, that is, he could see his legs. And then, at a point, he said, he saw that the man's legs

[ 418 Pa. Page 158]

"started climbing up," undoubtedly the spasmodic reaction of pain resulting from the crushing and severing of the hand above. After stopping the crane the operator saw Millili "hanging on the side," he grabbed him and applied ...

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