Appeal from order of Court of Common Pleas of Delaware County, No. 4126 of 1964, in case of Gordon Broadbent et al. v. A. Moe & Company, Inc.
George J. McConchie, with him Cramp & D'Iorio, for appellant.
John T. Mulligan, with him Lord & Mulligan, for appellees.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J.
[ 208 Pa. Super. Page 30]
This appeal is from the grant of a new trial in an action of assumpsit brought to recover the value of a marine compressor leased by plaintiffs-appellees to the defendant-appellant and not returned. A jury trial resulted in a verdict for the defendant. A new trial was granted on the grounds that the verdict was against the weight of the evidence and the charge of the court.
The facts are generally undisputed. Defendant, a marine contractor, orally rented the compressor from plaintiffs on September 20, 1963, for an indefinite period and placed it on a barge owned by another contractor. Both defendant and this third party were working under River Associates, the general contractor, in the construction of a boat landing platform at a United States Coast Guard lighthouse and weather station in Delaware Bay. The barge had been inspected in dry-dock and properly outfitted in accordance with the United States Coast Guard safety requirements
[ 208 Pa. Super. Page 31]
shortly before this incident. On September 29, 1963, between six and eight a.m., while it was securely lashed to the deck of the barge which was moored three miles from shore and within hailing distance (150 yards) of the manned United States Coast Guard lighthouse and weather station, the compressor was swept overboard with a large derrick and a quantity of other equipment and gear during a storm which ripped off the deck of the barge rendering it a total loss. During the week end of September 29, 1963, there was a watchman on the barge who was employed by the owner of same and not by defendant. The watchman was also swept overboard at about the same time and lost his life.
The trial proceeded by plaintiffs proving the lease, the delivery of the compressor and the failure of defendant to return it. Defendant then proved the loss of the compressor in the manner hereinbefore set forth. The plaintiffs then offered evidence to establish negligence on the part of the defendant. Much of the evidence was contained in a report of the United States Coast Guard following an investigation made by it into the cause of death of the watchman, the admissibility of which is in dispute. Plaintiffs also offered "Marine Forecast and Warnings" issued for Delaware Bay during this period by the United States Weather Bureau and certain answers made by defendant to interrogatories which plaintiffs submitted to it.
Plaintiffs contended that defendant was negligent in failing to acquaint itself with available weather forecasts and to act thereon in protecting its compressor, and that the watchman was negligent in permitting water to get into the hull of the barge and also in permitting the bilge pump by which water was pumped from the hull to become wet and inoperable. Plaintiffs also contended that defendant was responsible for the watchman's negligence. The jury, however, found for the defendant, from which it may be reasonably concluded
[ 208 Pa. Super. Page 32]
that plaintiffs failed to prove any acts of negligence for which the defendant was responsible and therefore failed to meet their burden of proof. Huck-Gerhardt Company, Inc. v. Kendall, 189 Pa. Superior Ct. 126, 149 A.2d 169 (1959); Schell v. Miller North ...