Appeal from order of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1959, No. 1977, in case of Sylvester Corbin v. M. Wilson & Son and Werner Wrecking Co.
Edwin E. Naythons, with him Freedman, Borowsky and Lorry, for appellant.
Victor L. Drexel, with him Pepper, Hamilton & Scheetz, for appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Cohen dissents.
Sylvester Corbin, a 40-year-old laborer, was injured when bricks cascaded upon him while working on a building-wrecking job in the "Mall Project" in Philadelphia. He brought suit against M. Wilson & Son, the firm which owned a crane, whose operator, Corbin claimed, so negligently operated the machine as to cause the accident in controversy, and obtained a verdict of $27,000.*fn* Wilson & Son, hereinafter to be referred to as the Wilson firm, moved for judgment n.o.v. and a new trial. It later withdrew the motion for judgment n.o.v. and pressed for a new trial. The trial judge sat as a single judge court en banc and ordered a new trial, enumerating reasons. The plaintiff appealed.
On July 6, 1959, the plaintiff was working on the fourth or fifth floor of a building at Sixth and Arch Streets. He went down to the third floor to obtain a drink of water and on his return, as he climbed the stairs, called out to the crane operator to "Hold it I'm coming up". A co-worker, William James, communicated Corbin's cry to the crane operator, Bill, by a hand signal. He demonstrated the hand signal in court. The operator ignored the signal and cry, pulled his levers, the boom of the machine tore into the bowels of the structure, setting off an avalanche of bricks, engulfing the plaintiff, and bringing serious injury to his left hand.
It was the Wilson firm's defense throughout the trial that it was not their crane which had been involved in the plaintiff's accident. The president of the firm, however, admitted that it had three cranes operating on the project. One of these cranes was identified by two of Corbin's co-workers.
In his opinion ordering the new trial the trial judge pointed to several matters of fact which, in every instance, had been decided by the jury. He said that since the plaintiff was an experienced construction worker he was guilty of contributory negligence because he should not have come up the stairs without first determining he could do so in safety. The court did not indicate what Corbin should have done, or how he did not exercise prudence. Corbin called out that he was on his way back to his job and to hold everything. The method of communicating with the crane operator was by voice and by hand signals. Both methods were employed. Even the defendant firm did not charge the plaintiff with contributory negligence. Indeed, after having filed a motion for judgment n.o.v., it withdrew that motion which it certainly would not have withdrawn had it believed the evidence proved Corbin guilty of contributory negligence.
Moreover, the trial judge charged at length on the subject of contributory negligence, clearly stating to the jury: "If he [the plaintiff] was in any way contributorily negligent, he is not, under the law, entitled to recover."
The trial judge stated in his opinion that no signal was given to the crane operator. This statement is not borne out by the record, as already pointed out above. The trial judge said that, in a prior deposition, the plaintiff had said the accident occurred when the fifth floor was being removed but that at the trial, he said it was the fourth floor. The demolition process began with the roof and proceeded groundward. Thus, with the roof of the building gone and with girders, beams and other structural features being skeletonized amid dust, dirt and debris, one could easily mistake the fourth for the fifth floor, or vice versa. Anyhow, it didn't matter where the bricks bombarded Corbin if he was injured through the negligence of the defendant's operator. And, still further, the whole matter of locus in quo, method of procedure in wrecking operations, activity of the plaintiff and his co-workers were submitted to the jury in a very clear, ample and unmistaking charge. After considering ...