Appeal from order of Court of Common Pleas of Westmoreland County, July T., 1970, No. 987, in case of George Bowman v. Fretts & Leeper Construction Company.
H. Reginald Belden, Jr., with him Stewart, Belden, Sensenich & Herrington, for appellant.
Dom A. Meffe, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Cercone, J. Spaeth, J., concurs in the result.
[ 227 Pa. Super. Page 348]
This is an appeal from the lower court's denial of defendant's motions for new trial and judgment n.o.v. in a trespass case in which plaintiff won a jury verdict against defendant for injuries received in a fall on September 17, 1968.
Plaintiff was a fireman and employee of the Connellsville Fire Company of Connellsville, Pennsylvania, for twenty-three years prior to the occurrence from which the suit in trespass arose. He was a driver-fire-fighter.
Some time prior to September 9, 1968, the fire company ordered a new and larger fire engine for the company's use. This necessitated certain alterations of the firehouse including removing and replacing the first floor in order to accommodate the new larger engine. The alterations also included the removal of a brass pole attached at its base to the first floor and which extended
[ 227 Pa. Super. Page 349]
up through a hole in the second floor and continued to the ceiling. This pole was used for firemen to slide down from their living quarters on the second floor to the waiting engines below.
Defendant-contractor in undertaking the work of renovation took exclusive control of the firehouse premises. In early September of 1968 the contractor barricaded the front of the firehouse to prevent bypassers from falling into the basement area of the firehouse which was left exposed by the removal of the first floor. The brass pole was removed and the hole through which it passed was not covered by the contractor before the occurrence of the event which brought about this lawsuit. The firemen who lived and ate on the second floor were bothered by dust which came from defendant's work below and drifted up through the hole in the second floor from which the pole had been removed. In order to minimize the effect of dust, the firemen placed cardboard, rugs and even a bed over the hole.
Plaintiff testified that he was aware of the hole and the makeshift arrangements used to cover it. The contractor also knew of these makeshift arrangements. On September 17, 1968, plaintiff was on duty at the firehouse and was present on the second floor living quarters. During this time he and a fellow fireman approached the hole to adjust the rug which had been placed over the hole and, while doing so, plaintiff fell through the hole into the basement area below and suffered the injuries complained of in this litigation.
At the close of plaintiff's case defendant made a motion for compulsory non-suit claiming, inter alia, that the Restatement of ...