Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1965, No. 623, in case of Edwin J. Crane v. I.T.E. Circuit Breaker Co.
Eugene R. Lippman, with him Krusen, Evans and Byrne, for appellant.
Thomas B. Rutter, with him Litvin and Rutter, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones concurs in the result. Mr. Justice Cohen took no part in the decision of this case. Mr. Justice Roberts took no part in the consideration or decision of this case.
Plaintiff-appellee, Edwin J. Crane, was an employee of E. A. Gallagher & Sons (Gallagher), a rigging company. Crane sustained serious personal injuries when he was trapped and crushed between a falling 2,000 pound skid and a moveable metal parts transportation rig in defendant-appellant's, I.T.E. Circuit Breaker (ITE), Philadelphia plant.
Gallagher -- an independent contractor -- had contracted with ITE to remove from ITE's premises certain pieces of heavy machinery. The machinery was to be partially dismantled, placed on skids and then hauled to a railroad siding for shipment. On the day of the accident, plaintiff and a number of other Gallagher employees were engaged in moving a piece of the machinery through a narrow area in the plant. Attempting to avoid a large rack which was in the aisle, one of the Gallagher employees was unable to maintain sufficient tension on his guideline securing the skid and machinery, and it fell on plaintiff, seriously injuring him. Plaintiff's complaint charged defendant-ITE with negligence in failing to provide a safe passageway and in failing to keep the passageway clear of Page 444} obstructions. The jury returned a verdict in favor of plaintiff-Crane and ITE's motions for judgment n.o.v. and for a new trial were denied by the Court en banc, one Judge dissenting. This appeal followed the entry of judgment.
After first characterizing the relationship between plaintiff (Crane) and defendant (ITE) as that of a business invitee (plaintiff) to a possessor of land (defendant), the case was submitted to the jury by the trial Judge on three possible theories of recovery:*fn* (1) Defendant-ITE had a duty to exercise reasonable care to make its premises safe for plaintiff-Crane, an employee of the independent contractor-Gallagher, or to give plaintiff adequate warning of any dangers known to defendant but unknown to plaintiff; (2) defendant had a duty to exercise reasonable care to prevent the independent contractor-Gallagher from creating an unreasonable risk of harm to others, if it knew or should have known that it had the ability to control Gallagher and that there was a need and an opportunity to exercise control; (3) defendant had a duty to exercise reasonable care to discover the negligent acts or the likelihood of negligent acts by the independent contractor-Gallagher and to exercise a reasonably careful supervision over the appliances and the methods of the independent contractor-Gallagher.
It is ITE's first contention that it is entitled to judgment n.o.v. because, when considered in the light of the evidence, plaintiff failed to sustain his burden of proof under any theory of his case or the applicable principles of law. We agree.
It is a general rule that a possessor of land has a duty (1) to use reasonable care to make the premises
safe for the use of persons invited to use the premises for business purposes or (2) to give them adequate and timely warning of dangers known to him but unknown to the business invitees. Janowicz v. Crucible Steel Company of America, 433 Pa. 304, 249 A.2d 773; § 343, Restatement 2d, Torts. Moreover, a possessor of land who retains and exercises control over work, including construction work, entrusted to an independent contractor is liable for harm caused by his failure to use reasonable care in the exercise of that control. Cooper v. Heintz Mfg. Company, 385 Pa. 296, 122 A.2d 699; Hader v. Coplay Cement Mfg. ...