Appeal from judgment of Court of Common Pleas of Washington County, July T., 1965, No. 19, in case of Charles F. Abbott v. Metty Onopiuk et al.
Stephen D. Marriner, with him McCreight, Marriner & McCreight, for appellant.
George Raynovich, Jr., with him Samuel L. Rodgers, and Stone & Raynovich, and Rodgers & Roney, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones.
On July 29, 1963, Charles Abbott was employed by Larson Construction Company (Larson) at the construction site of the Donaldson Crossroads Shopping Center. Larson was the general contractor for the project, and had subcontracted the masonry work (bricklaying and building of walls) to Keystone Masonry Construction Company (Keystone), and the plumbing work to Steel City Piping Company (Steel City). On the date in question, a theater building was being constructed and Abbott, standing on the roof joists, was unhooking bundles of roofing as a crane lowered them onto the joists. While he was doing this, according to Abbott's testimony, something went wrong and "I felt everything going out from under me. I turned, jumped, grabbed the top of the wall with my hands, held on as long as I could until the bricks come [sic] down. Then I landed in the debris." In short, something caused the joists, upon which Abbott was standing, to fall.
Abbott instituted a suit in trespass in the Court of Common Pleas of Washington County against the two
contractors, Keystone, and Steel City, and also against the project's architect, Jamrom-Keegan Associates. Larson was joined as an additional defendant. Of vital importance at the trial was the determination, if possible, of what factor or combination of factors caused the joists to fall. A jury verdict of $175,935.05 was returned in favor of Abbott against all the defendants except the architect. Motions for judgment n.o.v. and for a new trial were dismissed by the court, en banc,*fn1 and judgment entered on the verdict. Only Steel City has appealed from that judgment, seeking a new trial.
"In passing upon the propriety of the refusal of a new trial, our inquiry is whether the court below abused its discretion or committed an error of law which controlled the outcome of the case: [citing cases]. Unlike the appellate review of a refusal to take off a compulsory non-suit [or a refusal to enter a judgment n.o.v.] where the evidence and all reasonable inferences therefrom are viewed in the light most favorable to the verdict-winner, ordinarily in reviewing the refusal to grant a new trial we view all the evidence: [citing cases]." Noel v. Puckett, 427 Pa. 328, 332, 235 A.2d 380, 382-83 (1967). See Austin v. Ridge, 435 Pa. 1, 6, 255 A.2d 123, 125 (1969); Bohner v. Eastern Express, Inc., 405 Pa. 463, 471-72, 175 A.2d 864, 869 (1961); Sherman v. Manufacturers Light and Heat Co., 389 Pa. 61, 68 n., 132 A.2d 255, 259 n. 2 (1957).
Abbott's theory of liability against Steel City was that this defendant, in violation of the project's plans and specifications, had wrongfully cut a pipe chase in the wall near the point where the wall collapsed, that this had weakened the wall and that it was, at least, a contributing factor to the accident.*fn2 An obviously
vital question in the case against Steel City was whether the pipe chase had been cut out of the wall by Steel City or built directly into the wall by Keystone's masonry workers. Abbott and Steel City presented directly conflicting eyewitness testimony on the point, but that question was decided by the jury against Steel City and need not trouble us now. The following point for charge was read to the jury at the request of Steel City: "If you find that the Steel City Piping Company did not cut any chase in the interior wall of the theater then your verdict must be in favor of the plumbing ...