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decided: April 11, 1974.


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.

Author: Cercone

[ 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 Torts (Second) § 343,*fn1 as approved

[ 227 Pa. Super. Page 350]

    by the Supreme Court of Pennsylvania in Palenscar v. Michael J. Bobb, Inc., 439 Pa. 101, 266 A.2d 478 (1970), was controlling in the case. In response to defendant's motion plaintiff rebutted with the argument that § 343A*fn2 of the Restatement was applicable. After argument on this issue the trial court denied the motion.

We are not going to discuss whether or not this case is properly predicated on the application of the particular language found in §§ 343 or 343A since the parties here were satisfied to have the issues in the case determined on the basis of those sections. However, the lower court was correct in denying defendant's motions for new trial and judgment n.o.v. since § 343 does not absolve a possessor of the land in every instance where a dangerous condition exists. That section holds a possessor of land subject to liability where he should expect that his invitees will not discover or realize the danger, " or will fail to protect themselves against it." Furthermore, although the court, in ruling on defendant's motions for compulsory non-suit and binding instructions, expressed the belief that Section 343A applied in this case, the court in its charge, placed upon the jury the responsibility of deciding the facts and applying them under either theory as presented by the parties. The court explained the principles contained in both Restatement sections to the jury although it did not refer to the specific language of those sections.

[ 227 Pa. Super. Page 351]

Taking the charge as a whole, as we are bound to do, together with the points for charge presented by defendant, affirmed by the court and read to the jury, the case was fairly presented to the jury by the court. Therefore, a proper disposition could be made by the jury on the issues of the negligence of the defendant and the alleged contributory negligence of the plaintiff.

Appellant also argues that the testimony of Donato Santone was improperly admitted. Santone was a contractor with considerable construction work experience who testified that according to custom and usage in the trade a barricade should have been placed around the hole by the defendant. Having admitted Santone's qualifications and competency the defendant merely objected to the materiality of his testimony. Since he was recognized as an expert, Santone was qualified to state his opinion as to whether a reasonably prudent contractor would have barricaded the hole under the circumstances of this case. See 1 Henry, Pennsylvania Evidence § 572 (4th ed. 1953).

The order of the lower court is affirmed.


Order affirmed.

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