Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1968, No. 2782, in re Clarence Fullard v. Urban Redevelopment Authority of Pittsburgh, a corporation, and Housing Authority of the City of Pittsburgh, a municipal corporation; and Ernest D. Wright, individually and trading and doing business as Wright's Demolition and Excavating Company.
Franklyn E. Conflenti, with him Cauley, Birsic & Conflenti, for appellant.
Elmer G. Klaber, for appellee, Urban Redevelopment Authority.
John F. Ploeger, with him Truel & Ploeger, for appellee, Housing Authority of the City of Pittsburgh.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Packel, J. Watkins and Jacobs, JJ., dissent from the vacation of the order.
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The plaintiff-appellant lost sight in one eye as a result of it being penetrated by a piece of steel, flying
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off an allegedly defective chisel. He had admitted in the course of his testimony that the chisel, supplied him by an employee of one of the defendants, appeared to be rusty and ragged and that flakes came off as he was striking the chisel to put a hole in a steel barrel. The barrel and the chisel had been supplied by an employee of the defendant-housing authority to enable the plaintiff's employer, an additional defendant, to perform his contract with the housing authority for the removal of ashes from a former bank building.
The court below granted motions for compulsory nonsuits as to all the defendants upon the ground that the "plaintiff, knowing of a danger, disregarded the warnings of danger and assumed the risk of injury." It need not be determined at this point whether this is a case of voluntary assumption of risk or one of contributory negligence because the plaintiff cannot recover if he fails to make out a case free of either defense, even though the burden of proof for either defense is upon the defendants. Giannone v. Reale, 333 Pa. 21, 3 A.2d 331 (1939); Moseley v. Reading Co., 295 Pa. 342, 145 A. 293 (1929); cf. Restatement (Second) of Torts § 402A (1965), under which only the defense of voluntary assumption of risk is available.
It is well-settled that a non-suit should be entered only in a clear case. Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 189 A.2d 271 (1963). On appeal from a non-suit the evidence must be viewed in the light most favorable to the plaintiff. Celender v. Allegheny Co. San. Auth., 208 Pa. Superior Ct. 390, 222 A.2d 461 (1966). These principles are equally applicable to the issue of contributory negligence or voluntary assumption of risk on the part of a plaintiff and to the issue of negligence on the part of a defendant.
The court below did not find it necessary to consider the issue of negligence ...