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June 4, 1971

James MAGILL, Administrator of the Estate of Frank W. Magill, Jr., Deceased

Luongo, District Judge.

The opinion of the court was delivered by: LUONGO

On January 27, 1967, Francis W. Magill was fatally injured while painting machinery in the Westinghouse Electric Corporation (Westinghouse) plant at Lester, Pennsylvania. Magill was an employee of Murphy, Inc. (Murphy), a painting contractor, which had been engaged by Westinghouse to paint the machinery.

 The case was tried to a jury and submitted to it on interrogatories in accordance with Rule 49(a), F.R. Civ. P. By its answers, *fn1" the jury found that Westinghouse was negligent, that its negligence was the cause of the accident, that decedent was not contributorily negligent, that Murphy was not negligent, and assessed damages under the Survival Act at $171,270 and under the Wrongful Death Act at $29,000. Accordingly, verdict and judgment were entered for the administrator and against Westinghouse in the principal action, and in favor of Murphy and against Westinghouse in the third-party action.

 Before the court are Westinghouse's motions for judgment n.o.v., or, in the alternative, for a new trial in both the principal and the third-party actions. Westinghouse has advanced several grounds for its motions.

 The Facts.

 Viewing the evidence in the light most favorable to the prevailing parties, i.e., Magill's administrator and Murphy [ Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A. 2d 123 (1957)], the jury could have reasonably found these facts:

 Murphy was engaged by Westinghouse to paint machinery and equipment located in "H" Building of Westinghouse's plant in Lester, Pennsylvania. "H" Building is approximately 135 yards long and 50 yards wide. The machines were located along three main aisles running the length of the building. The machines to be painted were designated by the Westinghouse foreman, but in general the machines were painted in order, one after another, along an aisle. The machines were many and varied and were highly dangerous to those not familiar with them. There were a variety of power controls for the machines. Some controls were located on the machines, others were on nearby columns; some controlled one machine while others controlled several. In addition to the main power controls to the various machines, there were operating controls, some of which were spring loaded buttons for "stop," "reverse" and "forward" motions. One could not tell by their appearance which operating control button had been activated.

 Work under the agreement between Murphy and Westinghouse commenced around January 3, 1967. The regular painting crew consisted of a foreman (William Crouthamel), two journeymen painters (Frank Drozdowski and the decedent), and an apprentice (Frank Costello). *fn2" Although the painting was to have been done on Westinghouse's third shift (midnight to 8:00 a.m.), each evening Murphy's men arrived and were admitted to the plant around 11:00 p.m. and began work about 11:15 p.m. with the approval of Westinghouse.

 On the evening prior to the accident, Crouthamel was instructed by the Westinghouse foreman to paint the next machine in line, a lathe operated by one Frank Fiego. Fiego knew that his machine was going to be painted that night although he had not been officially informed of the fact by his foreman.

 On the night in question, when the painters reached his lathe Fiego had stopped working and had secured his tools. He said to the painters "It's all yours" and went to the washroom without turning off the power to his machine. The painting crew began to clean the machine in preparation for painting it. In the process of brushing steel filings from the machine, decedent leaned into the ways of the lathe. His leg apparently struck the clutch handle, setting the machine in motion, the lathe began to turn, and the protruding jaws of the chuck struck decedent about the head and shoulders, causing his death.

 The Motions.

 For the sake of clarity I will treat the motions in each action separately, although Westinghouse assigns some of the alleged errors as prejudicial in both actions.


 1. Motion for Judgment N.O.V.

 An employee of an independent contractor working on premises owned by another is a business invitee. Mathis v. Lukens Steel Co., 415 Pa. 262, 203 A. 2d 482 (1964). The possessor of land owes to the contractor's employee, as a business invitee, a "duty of reasonable care to make its premises safe for him and to give him adequate warning of any dangers known to [the possessor] and unknown to" the employee. Mathis v. Lukens Steel Co., supra, at 264, 203 A. 2d at 484; Argo v. Goodstein, 438 Pa. 468, 265 A. 2d 783 (1970); Stringert v. Lastik Prods. Co., 397 Pa. 503, 155 A. 2d 625 (1959); Stark v. Lehigh Foundries, Inc., supra. The duty of care extends not only to the premises themselves but to the activities of the possessor or his employees which may affect the conditions of the premises. Argo v. Goodstein, supra. A possessor's duty is satisfied if it is reasonable to believe that the dangerous condition would be obvious to and discovered by an invitee. Mike v. Lebanon Miridites League, 421 Pa. 217, 218 A. 2d 814 (1966).

 In the instant case, decedent was a business invitee, and as such, Westinghouse owed him the duty to exercise reasonable care to provide a safe place to work, or to give him adequate warning of unknown dangers.

 Westinghouse argues that it is entitled to judgment notwithstanding the verdict because (a) the painters were aware that the machines were dangerous and the dangerous condition was obvious, and (b) that its duty as a possessor of land was satisfied when it warned Murphy that it (Murphy) should check to see that the machines were turned off before permitting its employees to begin painting.

 (a) As for Westinghouse's contention that the painters were aware that the machines were dangerous and the dangerous condition was obvious, this was true so long as they knew that the machines had current running into them, but there was evidence from which the jury could have found that Murphy's employees had been led to believe by Westinghouse personnel that the power to Fiego's lathe had been turned off, and that consequently the dangerous condition had been eliminated. The evidence tending to support such a finding is that Westinghouse's foreman had given instructions that Fiego's lathe was to be painted that night; Fiego told the painters "It's all yours" after all his gear had been secured, and Fiego left his machine at a time when the painters were standing by, waiting to start work. That evidence afforded ample support for the jury's conclusion that Murphy's men had taken adequate steps to assure themselves that the machine was inoperable and presented no danger to them. Stark v. Lehigh Foundries, Inc., supra.

 (b) Westinghouse's second contention, that it had discharged its obligation to warn the painters by warning the contractor, also lacks merit. Even assuming that Westinghouse had warned the contractor that these machines were dangerous and that the contractor should check to make sure that the power to a machine was cut off before commencing to paint it (testimony which the jury was free to disregard), the question remains whether such warning was adequate under the circumstances. The cases upon which Westinghouse relies [ Palenscar v. Michael J. Bobb, Inc., 439 Pa. 101, 266 A. 2d 478 (1970); Janowicz v. Crucible Steel Co., 433 Pa. 304, 249 A. 2d 773 (1969); Grace v. Henry Disston & Sons, Inc., 369 Pa. 265, 85 A. 2d 118 (1952); Engle v. Reider, 366 Pa. 411, 77 A. 2d 621 (1951), overruled in part, Mathis v. Lukens Steel Co., supra ; Valles v. Peoples-Pittsburgh Trust Co., 339 Pa. 33, 13 A. 2d 19 (1940); Celender v. Allegheny County Sanitary Authority, 208 Pa. Super. 390, 222 A. 2d 461 (1966)] for its assertion that a general warning regarding dangerous conditions relieves a possessor of land of liability are inapposite.

 Grace, Engle and Valles, are all cases in which the contractor was in exclusive control of the premises or the repair operation. The rationale appears to be that under such circumstances the possessor of land has neither the authority nor the ability to control the conduct of the contractor's employees or the premises. The Pennsylvania Supreme Court has consistently indicated that the holdings of these decisions should be limited to exclusive control situations. See, e.g., Mathis v. Lukens Steel Co., supra; Cooper v. Heintz Mfg. Co., 385 Pa. 296, 122 A. 2d 699 (1956). Celender and Palenscar hold only that an employee of a contractor cannot recover from the possessor of land for injuries sustained as a result of the very defects which the contractor had undertaken to repair, and as to which, presumably, the contractor was the more knowledgeable. Finally in Janowicz, the court merely stated that the rule in Grace was inapplicable because no warning had been given to the contractor.

 In the instant case, Westinghouse, not Murphy, was in control of the premises. It continued to conduct its operations on a very large number of machines while the Murphy men were working on a handful. Moreover, it is clear that neither the painting contractor nor its employees were expert in sources of, or controls for, power to the machines. As noted above, Westinghouse had a great variety of machines with many different types of controls. The controls were so complex that not even Westinghouse employees were familiar with them. There was evidence that the painters had, on earlier occasions, been warned by Westinghouse not to touch the control switches since, on at least one occasion, the painters had mistakenly cut off the power to several machines which were not scheduled to be painted, and on other occasions the painters had started to paint machines which still had electrical power in them and as a result had caused several small electrical fires.

 The jury could reasonably have concluded from all this evidence that Westinghouse did not take reasonable steps to warn Murphy's employees of a dangerous condition (i.e. that the power to Fiego's lathe was still on); and/or that Westinghouse did not take reasonable steps to insure that the lathe had been rendered inoperable before permitting the painters to work in and around it; and/or that Westinghouse's employee, Fiego, had lulled the painters into the belief that the lathe had been made ready for them. See Stark v. Lehigh Foundries, Inc., supra ; Cooper v. Heintz Mfg. Co., supra ; Debenjak v. Parkway Oil Co., 159 Pa. Super. 603, 49 A. 2d 521 (1946).

 The motion for judgment notwithstanding the verdict will be denied.

 2. Motion for New Trial.

 In its brief in support of the motion for new trial, Westinghouse stated (page 9) "Various fundamental errors contributed to a failure to give Westinghouse substantial justice. We single out three but do not abandon the others (see footnote, infra)." A careful reading and rereading of the brief fails to disclose any "footnote, infra " setting forth "various fundamental ...

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