No. 1319 October Term, 1978 Appeal from the Judgment of the Court of Common Pleas of Luzerne County entered March 22, 1978 at No. 7234 of 1974.
Joseph J. Musto, Wilkes-Barre, for appellant.
Joseph V. Kasper, Wilkes-Barre, for appellee Methislaus Szumski.
Joseph F. Iracki, Wilkes-Barre, for appellees Andrew J. Miroslau et ux.
Van der Voort, Wieand and Lipez, JJ.
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Methislaus Szumski was injured when he fell from a temporary platform used to achieve passage to and from the front door of a dwelling house then under construction. At the time of the fall, Szumski and his son were doing the electrical and plumbing work pursuant to a contract with the owners, Andrew J. and Connie Miroslau. Szumski filed an action in trespass against Lehman Homes, Inc., another contractor who had put the temporary platform in place. Lehman Homes caused the owners to be joined as additional
[ 267 Pa. Super. Page 481]
defendants. A jury trial produced a verdict in favor of Szumski for $30,000 against Lehman Homes alone. Post trial motions were denied, and Lehman Homes appealed from the judgment entered on the verdict.
In reviewing the trial court's denial of appellant's motion for judgment n. o. v., the evidence, together with all reasonable inferences therefrom, must be viewed in the light most favorable to the verdict winners. Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973); Kresovich v. Fitzsimmons, 439 Pa. 10, 264 A.2d 585 (1970); Cerino v. Philadelphia, 435 Pa. 355, 257 A.2d 571 (1969). All conflicts in the evidence, moreover, must be resolved in favor of the prevailing party. Moyer v. Ford Motor Co., 205 Pa. Super. 384, 209 A.2d 43 (1965); Metts v. Griglak, 438 Pa. 392, 264 A.2d 684 (1970); Axilbund v. McAllister, 407 Pa. 46, 180 A.2d 244 (1962). However, where the evidence is insufficient to sustain a verdict against the losing party, a court will enter judgment n. o. v. in favor of the appellant despite a verdict to the contrary. Kolb v. Hess, 227 Pa. Super. 603, 323 A.2d 217 (1974); Eldridge v. Melcher, 226 Pa. Super. 381, 313 A.2d 750 (1973).
Appellant was one of several independent contractors employed by the appellee owners to construct a dwelling house. In a general way it can be said that appellant's contract called for it to construct the shell of the house. The owners contracted separately for plastering, for electric and plumbing work, and for sidewalks and landscaping. When the work had progressed sufficiently to permit rough plumbing and electrical wiring, the owners summoned Szumski and his son to do this work. On or about Friday, February 8, 1974, prior to Szumski's arrival, appellant's workmen left the job site, and appellant delivered to the owners the key to the house. On the following Monday, February 11, 1974, Szumski and his son reported to the job site to begin work. When they arrived, they determined to use the front door of the home for access purposes and pulled their truck up to the front porch. The front porch, however, had not been completed and was not covered by
[ 267 Pa. Super. Page 482]
flooring. An open space existed, which was later during the course of construction to be covered by floorboards. The open space was surrounded on three sides by cinder block footings and on the fourth side by the home itself. It had been partially covered by a temporary platform constructed by attaching a piece of plywood to two by fours. The platform rested on the cinder block footings and provided passage across the open porch area to the house. It had been put in place by appellant's workmen during their phase of the construction work. On Monday morning, Szumski and his son walked across the platform with the owner of the house and found it to be safe and firmly secured. They testified that it was a customary practice on construction sites to use platforms of the same or similar type to provide passage for workmen over incomplete construction. Szumski and his son used the platform on ...