Appeal from judgment of Court of Common Pleas of Delaware County, Oct. T., 1961, No. 1011, in case of Philadelphia Electric Company v. James Julian, Inc., L. S. Lee and Son, and Joseph Puchalski.
Edward S. Lawhorne, for appellant.
James A. McGoldrick, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell, Mr. Justice Jones and Mr. Justice Roberts concur in the result.
This is an appeal by defendant subcontractor from a judgment n.o.v. entered in favor of defendant James Julian, Inc. Julian had contracted with the Pennsylvania Department of Highways to widen and resurface a portion of Baltimore Pike in Delaware County. Julian in turn employed defendant, L. S. Lee and Son, an independent subcontractor, to erect guard rail fencing along the south edge of the widened highway.
Along that edge, plaintiff maintained a high pressure underground gas distribution main. Well before the project was begun, Julian was made aware of the existence of this main and was told by plaintiff's representative that the line could not be taken out of service. Despite this knowledge, Julian never advised Lee of the main's presence or location and not knowing of the pipeline's presence, an employee of Lee, while pile driving a guard fence post into the left shoulder of the highway, penetrated plaintiff's gas main. As a result, the entire main was shut down and repairs made at considerable expense to plaintiff. The evidence reveals that Julian's project supervisor, who knew where the gas main was located, saw Lee's men working on the shoulder on the day of the accident and did not warn them.
Verdict was entered against both Julian and Lee in the sum of $32,042.62. Lee withdrew all of its post-trial motions but Julian's motion for judgment n.o.v. was granted. The circumstances of this case are covered
by two sections of the Restatement 2d, Torts, § 427, which provides: "§ 427. Negligence as to Danger Inherent in the Work. One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger."*fn1
The record reveals that Julian knew that plaintiff maintained a high pressure gas main under the precise ground wherein Lee would drive down its posts to install the guard fence. Julian knew or had reason to know that if the gas main were broken in the course of driving down a fence post, plaintiff would suffer severe damage. Reasonable prudence dictates that Julian advise Lee of the danger and not rely on Lee's employees finding it out for themselves.
Moreover, section 416 provides: "§ 416. Work Dangerous in Absence of Special Precautions. One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or ...