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November 9, 1967

Ellen HENNIGAN, Administratrix of the Estate of James C. Hennigan, Dec'd.
ATLANTIC REFINING COMPANY and City of Philadelphia. Bonnie RIDDICK, Administratrix of the Estate of John Riddick, Dec'd. v. ATLANTIC REFINING COMPANY and City of Philadelphia. Roger A. JOHNSON, Administrator of the Estate of Robert C. Wilson, Dec'd. v. ATLANTIC REFINING COMPANY and City of Philadelphia

The opinion of the court was delivered by: HIGGINBOTHAM

HIGGINBOTHAM, District Judge.



 These cases were consolidated and tried to a jury which returned verdicts in favor of each of the three plaintiffs in their actions against defendant, City of Philadelphia, (hereafter called the "City"), and against each of the three plaintiffs in their actions against defendant, Atlantic Refining Company (hereafter called "Atlantic"). In accordance with findings of the jury as expressed in answers to special interrogatories, *fn1" judgment was entered in favor of each of the plaintiffs against the City and against the City in its cross claim against Atlantic.

 The City now moves for judgment notwithstanding the verdict, or in the alternative, for a new trial. In addition, the City seeks an order crediting it with the amount paid to the plaintiffs as workmen's compensation and the amount paid to the plaintiffs by Atlantic, pursuant to a settlement.

 Atlantic has also moved for judgment on its cross claim against the City for the amount paid by it to plaintiffs pursuant to the settlement, plus costs and reasonable attorneys' fees.

 Jurisdiction was based on diversity of citizenship, and therefore Pennsylvania law is to be applied.

 After careful consideration of the myriad claims of the City - both individually and cumulatively - I find no basis for granting the relief sought by those claims. Since this case could have been settled for considerably less than the amount of the verdicts, counsel for the defendant, City of Philadelphia, in a manner of seeming desperation has now saturated the Court with 76 claims in support of his motions. He has synthesized within his motions matters of utter irrelevance, frivolousness and insignificance. This "shotgun" approach makes it difficult for any Court to discern whether any of the pellets sprayed by defendant may even inferentially have some substance. Nevertheless, in view of the magnitude of the total verdicts - $464,300.00 - I am attempting to answer those issues which probably have the most relevance. With respect to the scores of other conglomerate allegations urged by the City's counsel, I have found that these assertions individually and cumulatively are without merit; however, I have refused to discuss each of counsel's conglomerate claims since it would require an unnecessary extension of this present 43 page opinion.



 Each of the three decedents was employed by the Driscoll Construction Company (hereafter called "Driscoll" or "contractor") on the work of constructing a sewer for the City. The project was to run under 26th Street between Penrose Avenue and Passyunk Avenue, adjacent to Atlantic's "tank farm". Construction was to be by the tunnel method. At 8:00 A.M., August 22, 1962, the decedents entered the tunnel at shaft 5 to begin their work. Approximately 15 minutes later there was an explosion and fire in the tunnel adjacent to that shaft and all three men were killed. A fourth workman, Mr. Gregory, was also killed in this accident. However, his estate did not file suit in the Federal Court.

 The plans and specifications for the sewer project were drawn by the Design Division of the City's Water Department (N.T., 90-103, 1398-1400). It was their decision that it be done in tunnel rather than by open trench method (N.T. 155). Pursuant to this design, the water table ran through the tunnel (N.T. 151). Prior to the time the contract was let, the City knew the soil in the area was coarse and porous (N.T. 151-152; 1435). The City also had extensive prior knowledge that the ground in the area was likely to be saturated with hydrocarbons (i.e. petroleum products) (N.T., 1456, 2198; City's Answers to Riddick interrogatories 1 and 12, and to Hennigan interrogatory 19), and that they were likely to be encountered at the water table (N.T., 517, 518, 1326-36, 1430, 1441-43, 1456).

 The contract specifications required that an inspector from the Construction Division of the Water Department be at the job site at any time work was being done. It was his primary responsibility to see that the plans and specifications were followed (N.T. 461, 1485, 1444). These plans and specifications included a requirement that the contractor comply with the regulations of the Bureau of Mines, Explosives and Quarries of Department of Labor and Industry of the Commonwealth of Pennsylvania (N.T., 2188-2189). Each inspector was provided, by the Water Department with a copy of the "Guide for Inspectors" (Exhibit P-36), and it was gone over in detail with them. It was prepared under the direction of Water Commissioner, Samuel Baxter (N.T., 2188), and was intended as "* * * a bible for their inspections." (N.T. 461). Included among the duties of the inspector set out in the "Guide" are detailed instructions concerning both the manner of work and the safety of the workmen. *fn2"

 Both Commissioner Baxter and Mr. Samuel Wilson, Chief of the Water Department's Construction Division, testified that the Inspector had a definite responsibility for the safety of the workmen, and that the Inspector could order a job, or a portion thereof, stopped to protect the safety of the employees as well as to insure compliance with other specifications (N.T., 475, 485, 2190, 2194, 2196. See also testimony of Mr. M. J. Driscoll, N.T., 1774-75.) Prior to the date of the accident, the log book of the Contractor, (Exhibit P-83) showed, inter alia, the following entries: May 17: "* * * gas very strong." May 18: "* * * gas very strong." May 22: "* * * gas bad." May 24: "* * * hit gas at 15 feet." May 28: "* * * oil, water and gas very bad." May 29: "* * * gas very very bad." June 7: "* * * hit water gas and oil at 30 feet." June 13: "* * * set up and used 14 inch blower. Gas not too bad with same." June 16: "* * * Gas and oil in shaft caught fire with one spark from torch * * *." June 27: "* * * Need three blowers." July 6: "* * * Gas too bad. Pull everything out of hole and move to Number 6 shaft." July 7: "Gas about one foot in bottom of tunnel." July 12: "Using large blower * * * and also gas masks." July 13: "Shut down number 5 and 6 shafts for a few days to see if there is a solution to the gas problem." August 4: "Shaft has plenty of gas." August 20: "* * * fumes strong."


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