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May 13, 1966

John P. COYNE, Administrator of the Estate of James J. Barber, Deceased, Plaintiff,
MARQUETTE CEMENT MANUFACTURING COMPANY, Inc., an Illinois corporation, and Dravo Corporation, a Pennsylvania corporation, Defendants

The opinion of the court was delivered by: MARSH

 In this diversity action the administrator of the estate of James J. Barber, deceased, sued Marquette Cement Manufacturing Company, Inc. (Marquette) and Dravo Corporation (Dravo) under the Pennsylvania Wrongful Death and Survival Acts, alleging that the decedent's death was caused by the joint and several negligence of the defendants, Marquette and Dravo. Each defendant denied liability, and each affirmatively pleaded contributory negligence on the part of decedent. In addition, Dravo alleged that it was a statutory employer of the decedent under the Pennsylvania Workmen's Compensation Act and exempt from common law liability. *fn1"

 The fatal accident occurred on May 16, 1962, on premises owned by Marquette. Marquette had entered into a contract (Ex. 1) with Dravo to engineer and construct, inter alia, one crane runway and supports at Marquette's Neville Island plant in Allegheny County, Pennsylvania. The contract provided that the owner Marquette would have full control of the work in all of its phases, including the subletting of such parts of the work as may be desirable, the progress and sequence of the work, and all other questions. The retention of complete control by Marquette is emphasized and amplified in several portions of the contract.

 The contract designated Dravo as an independent contractor. It further provided:

"The Contractor [Dravo] shall take all necessary precautions for the safety of employees on the work * * *. He shall erect and properly maintain at all times, as required by the conditions and progress of the work, all necessary safeguards for the protection of workmen and the public * * *; and he shall designate a responsible member of his organization on the work, whose duty shall be the prevention of accidents."

 After the execution of this contract, Dravo issued a purchase order to Ingalls Steel Construction Company, Inc. (Ingalls) which authorized it to furnish and erect the fabricated structural steel required for the crane runway. Subsequently, Ingalls entered into a written contract whereby Penn Erection and Rigging Company (Penn) agreed to erect the fabricated steel ordered by Dravo from Ingalls.

 The decedent, James J. Barber, was an employee of Penn. He was killed as a result of a 43-foot fall from a concrete pier while engaged in the course of his employment.

 Marquette filed a cross-claim against Dravo pursuant to an indemnity clause in the contract between them which provided:

"IV. HOLD HARMLESS: The successful Bidder agrees to protect, defend, indemnify and save harmless Marquette, its officers and employees, from and against all loss, claims and expense for loss of or damage to property (including Marquette property) and loss of use and injuries to or death of persons (including by [sic] not limited to Marquette employees or of the successful Bidder) arising from performance under Proposal and Contract unless due to the sole negligence of Marquette." (Ex. 1)

 The jury returned general verdicts *fn2" in favor of the plaintiff and against Marquette and Dravo, finding pursuant to instructions that the former was liable under the doctrine of respondeat superior, Restatement Torts 2d, § 414.

 At trial the court thought special interrogatories were advisable in order to help resolve Dravo's liability under the indemnity clause and to determine affirmatively whether Marquette, through its own employees as distinguished from Dravo's employees, was guilty of primary acts of negligence which caused decedent's death.

 Responding to the special interrogatories the jury found that Marquette was not the negligent cause of decedent's death but that Dravo was the negligent cause thereof. These special findings were fully supported by the evidence. The jury also found specially that the decedent was not guilty of contributory negligence.

 Pursuant to Dravo's motion for a directed verdict (T., p. 464), denied at trial (T., pp. 482-484, 490), the general verdicts and the judgments entered thereon in favor of the plaintiff and against Dravo were set aside because it appeared to the court from the undisputed evidence that Dravo was the decedent's statutory employer under the Pennsylvania Workmen's Compensation Act. Shaw v. Edward Hines Lumber Co., 249 F.2d 434 (7th Cir. 1957).

 On the cross-claim, judgment was entered against Dravo as indemnitor in favor of Marquette because it appeared not only that the harm was not caused by the sole negligence of Marquette, but that its liability was only secondary under the doctrine of respondeat superior, and that Dravo was guilty of active negligence and its liability was primary. *fn3"

 Thereafter, Dravo and Marquette filed timely motions for judgment n.o.v., which, in our ...

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