Appeals from the Judgments of May 22, 1975 of the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division at No. 375 January Term, 1972 (No. 656) and No. 2811 January Term, 1973 (No. 657).
William S. Lerach, Pittsburgh, with him Reed, Smith, Shaw & McClay, Pittsburgh, for appellant.
Richard D. Gilardi, Pittsburgh, with him Gilardi & Cooper, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion.
[ 248 Pa. Super. Page 98]
This is a consolidated appeal in two trespass actions from the lower court's denial of appellant United States Steel Corporation's motions for judgment n. o. v. and for a new trial.
A jury trial ended in substantial verdicts in favor of plaintiffs against the United States Steel Corporation and the Edward Gray Corporation (Gray has not filed an appeal in this matter).
Candido Gonzalez, deceased, and Vincent Cardillo, were carpenters who worked for the Edward Gray Corporation (Gray Corp.) which was employed by United States Steel to perform certain construction work at the United States Steel Duquesne, Pennsylvania plant.
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On December 16, 1970, during the course of the construction work Gonzalez and Cardillo were injured. Gonzalez died as a result of his injuries. Thereafter, a suit was instituted based on the wrongful death and survival statutes by Gonzalez's widow, as Administratrix of her husband's estate against United States Steel. Vincent Cardillo also instituted trespass action against United States Steel for personal injuries he suffered. In both actions, United States Steel joined Gray Corp. as additional defendant, and the two cases were consolidated for trial.
After verdict in favor of plaintiffs and after consideration of appellant United States Steel's arguments based on its motions for judgment n. o. v. or for new trial, the court below, sitting en banc, denied the motions and judgments were entered upon the verdict and this appeal followed.
In consideration of the nature of the appeal, we are required to consider the evidence in the light most favorable to appellee-plaintiffs. Hargrove v. Frommeyer and Co., 229 Pa. 298, 323 A.2d 300 (1974); Karam v. Pennsylvania Power and Light Co., 205 Pa. Super. 318, 208 A.2d 876 (1965).
The construction contract called for Edward Gray Corp. to perform, inter alia, the tearing out of bricks in the No. 4 blast furnace and its four component stoves. The accident in this case occurred in the No. 3 stove, the facts of which are as follows:
A blast furnace stove is cylindrical in shape and from the outside resembles a huge tube of lipstick. The interior of a stove contains two vertical chambers. The largest interior chamber is known as a checker chamber because it is filled with bricks called checkers which are rectangular in shape and have holes in them. The smaller interior chamber is called the combustion chamber or well which is oblong in shape, completely hollow and lined with a layer of brick referred to as the skimwall. The two chambers are approximately 110 feet high.
Appellees introduced expert testimony at trial concerning the normal procedure to be followed in the tearing out of
[ 248 Pa. Super. Page 100]
checkerbrick in the larger checker chamber and the removal or tearing out of that layer of brick referred to as a skimwall in the well or smaller chamber.
First, some of the checkerbricks are removed from the checker chamber and thrown into the well. After the initial tearout of checkerbricks is completed, the checkerbricks remaining in the checker chamber are rodded. The rodding procedure unplugs or cleans out foreign material in the holes of the checkerbricks in the checker chamber. If holes in the checkerbricks cannot be unplugged then those checkerbricks are torn out and thrown into the well. This process of rodding continues until the holes in the remaining checkerbricks are unplugged, after which, and only after which work then commences in the well.
The next step in the procedure is to start work in the well or smaller chamber. This work consists of tearing out the lower portion of the skimwall starting from the floor and since the skimwall runs from top to bottom of the stove, some 100 feet or so, a supporting scaffolding is necessary to support that portion of the skimwall that is to remain after the lower portion of the skimwall is torn out. This scaffolding is referred to as pudlock scaffolding and once the pudlocks are in place the skimwall beneath it is removed or torn out.
The evidence indicated that if any other procedure were to be followed in the tearing out process it would be a departure from normal operations in the removal of bricks from the two chambers. After work in the skimwall had begun, United States Steel decided to remove more checkerbrick from the checker chamber. It was this decision that brought about a departure from the normal procedure. In other words, the tearing out of checkerbricks in the larger chamber after work had begun in the smaller chamber would endanger the scaffolding in the smaller chamber which supported the remaining skimwall that rose to a height of some 80 to 90 feet. The normal process of tossing checkerbrick from the larger chamber into the smaller chamber could no longer be pursued because of the possibility of
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these bricks striking the scaffolding and causing a ...