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BYRD v. MERWIN (03/25/74)

decided: March 25, 1974.

BYRD, APPELLANT,
v.
MERWIN



Appeal from order of Superior Court, Oct. T., 1972, No. 922, affirming judgment of Court of Common Pleas, Trial Division, of Delaware County, No. 10184 of 1968, in case of James P. Byrd v. Joseph H. Merwin and Allen O. Olin.

COUNSEL

James C. Brennan, with him Hinkson & Brennan, for appellant.

George J. McConchie, with him Cramp, D'Iorio, McConchie and Surrick, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Jones took no part in the consideration or decision of this case. Mr. Justice Eagen and Mr. Justice Nix concur in the result. Mr. Justice Pomeroy dissents.

Author: O'brien

[ 456 Pa. Page 517]

This appeal arises from an order of the Superior Court which affirmed the order of the Court of Common Pleas of Delaware County granting the motion of

[ 456 Pa. Page 518]

Olin, appellee herein, for a judgment notwithstanding the verdict. We granted allocatur.

The facts surrounding this appeal are as follows: Allen O. Olin is an attorney in Chester County who purchased a building which he intended to renovate into his law office and rental apartments. Olin hired one Joseph H. Merwin to act as his general contractor for the renovation of the building. In the course of the renovation, Olin also hired one William F. Walsh, an electrical contractor, to do the electrical work that Merwin was unable to perform. Appellant, James P. Byrd, was an employee of Walsh, acting in the capacity of a journeyman electrician on the project. Appellant, who had been on the job site several days previous to his accident, noticed the Merwin children, who were also working on the project, engaged in certain conduct that he felt was dangerous and reported the same to Walsh. On his third day on the project, Byrd was injured when Joey Merwin, aged sixteen, dropped a prefabricated staircase section on appellant's leg. This staircase had not been installed prior to the electrical wiring phase of the project, although prior installation was the usual procedure in such situations.

Appellant filed suit against both Olin and Merwin. The jury returned with verdicts against both defendants; the trial court granted appellee's motion for a judgment n.o.v., and denied Merwin's similar motion.*fn1

The basis for the court's grant of a judgment notwithstanding the verdict in favor of Olin was that it felt that appellant had failed to meet the prerequisites for establishing liability as to Olin under ยง 414 of the Restatement of Torts, 2d, which was appellant's theory of negligence.

Section 414 provides as follows: "One who entrusts work to an independent ...


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