Appeal from order of Court of Common Pleas of Montgomery County, No. 63-7425, in case of Robert Semet v. Andorra Nurseries, Inc., David Warren Construction Co. and Harry Kravitz.
Daniel B. Brandschain, with him Miller, Harwitz & Brandschain, for appellant.
James G. Hirsh, with him Harold W. Spencer, and Wright, Spencer, Manning & Sagendorph, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Eagen and Mr. Justice Roberts concur in the result. Mr. Justice Musmanno dissents.
This is an appeal from the Order of the Court of Common Pleas of Montgomery County refusing to take off a judgment of non-suit in a trespass case.
Plaintiff, Robert Semet, filed a complaint in trespass against defendants Andorra Nurseries, Inc., David Warren Construction Co. and Harry Kravitz.
On May 22, 1962, plaintiff was sent by his employer Milton Sugerman (an electric contractor) to a construction site owned by defendant, Andorra Nurseries, Inc. Plaintiff was to string a temporary line from an electric service box in the basement of a sample home to the chimney of the sample home and then to poles for the purpose of carrying electric current to the job site. Plaintiff instructed an employee of Andorra Nurseries to place an aluminum 34-foot extension ladder against the left side of the chimney of the sample home. This employee went to the top of the ladder and came down without any unusual incident occurring. Plaintiff made certain that the ladder was straight and settled. He then climbed to the top of the ladder and took some wire off his shoulder. While on the upper portion of the ladder it began to slip downward, and telescoping into the lower portion, as a result of which plaintiff fell and was severely injured. The lower Court entered a compulsory non-suit which the Court en banc refused to take off. Plaintiff thereafter appealed to this Court.
Plaintiff's principal contentions are (1) the jury should have been permitted to decide whether a broken locking device on the ladder existed prior to the accident, and (2) the Court improperly excluded the testimony of plaintiff's expert witness.
In Calloway v. Greenawalt, 418 Pa. 349, 211 A.2d 435, the Court said (page 351): "In Steiner v. Pittsburgh Rwys. Co., 415 Pa. 549, 204 A.2d 254, the Court, quoting from Flagiello v. Crilly, 409 Pa. 389, 390-391, 187 A.2d 289, said (pages 552-553): '. . . "It is hornbook law that a judgment of non-suit can be entered only in clear cases and plaintiff must be given the benefit of all evidence favorable to him, together with all reasonable inferences of fact arising therefrom, and any conflict in the evidence must be resolved in his favor: Castelli v. Pittsburgh Railways Company, 402 Pa. 135,
A.2d 632; Stimac v. Barkey, 405 Pa. 253, 174 A.2d 868; Borzik v. Miller, 399 Pa. ...