No. 326 Pittsburgh, 1981, Appeal from the Judgment entered February 24, 1981, Court of Common Pleas, Civil Division, Allegheny County at No. GD 77-05929.
Robert E. Wayman, Pittsburgh, for appellants.
James D. Elder, Pittsburgh, for appellees.
Wieand, Johnson and Montemuro, JJ. Wieand, J., concurs in the result.
[ 303 Pa. Super. Page 110]
This is an appeal from the entry of judgment against Duquesne Electric and Manufacturing Company (DEMC) in a personal injury action.
Charles A. Skalos and his wife instituted suit against the named defendants after Mr. Skalos received severe personal injuries when he was knocked from the roof of a small concrete block building, located inside DEMC's large building, by a crane operated by DEMC's employee Higgins. Plaintiff had been employed as an independent contractor to perform certain remodeling work on the small concrete building pursuant to a contract with DEMC. Plaintiff had worked on numerous occasions since 1970 on the roof of the small structure, as he was in charge of the work being done. He was injured when a crane, operated by DEMC's employee defendant Higgins, struck him, knocking him off the roof of the small concrete building onto the floor twenty-two feet below.
Plaintiff had been working along with a helper, who usually served as a lookout but, at the time of the accident, the helper had gone to the floor of the main building to retrieve materials. Plaintiff testified that it was necessary for him to get into a crouched position on the roof in order to avoid being hit by the crane, when the crane passed over the small concrete building. The record indicates that because of the noise created in the larger building, it was not possible to hear the crane moving. In order for Plaintiff to have the crane disabled while he worked on the roof, it was
[ 303 Pa. Super. Page 111]
necessary to make arrangements with an employee of DEMC to have the fuses pulled. However, this was not always feasible, as the crane was needed for work by DEMC's employees. Also, Plaintiff stated that he intended to use the crane himself on the day of the accident. The crane was operated by a pendant from the floor of the main building and was not equipped with a siren, horn or light.
At the close of Plaintiffs' case on liability, the Court entered a non-suit on behalf of defendants Manning, Maxwell & Moore, Inc., and Dresser Industries, Inc. The jury found in favor of defendant Higgins against both Plaintiffs and in favor of Plaintiffs against DEMC. Following denial of DEMC's motions for a new trial and judgment n.o.v., judgment was entered in the amount of $250,000 in favor of Charles A. Skalos and $25,000 in favor of Mary T. Skalos. This appeal followed.
Appellant DEMC raises five issues on appeal: (1) where the court charges the jury as to the liability of a possessor of land for activities conducted thereon, is not a verdict in favor of the defendant employee and against the employer possessor inconsistent, requiring the court to enter a judgment n.o.v. for the employer possessor, where there is no evidence of any independent negligence by the employer possessor?, (2) where the evidence discloses that the Plaintiff is aware of all the dangers and risks involved, is the Plaintiff not guilty of contributory negligence as a matter of law and barred from recovery when he fails to use due care for his own safety?, (3) should not a judgment n.o.v. be entered where the evidence clearly shows that it was reasonable for the possessor to believe that the dangerous condition would be obvious to and discovered by his invitee?, (4) where the court was requested to charge the jury that there is no requirement that the crane involved be equipped with a horn, light or siren and the court agreed but failed to do so and the jury's verdict is obviously predicated upon some theory not charged by the court, should not a new trial be granted?, and (5) where there is no evidence of independent negligence on the part of a possessor employer, should not
[ 303 Pa. Super. Page 112]
the court grant a new trial when the jury finds in favor of the employee and against the employer since the verdict is inconsistent?
The court in Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103, 7 A.L.R. 4th 1120 (1980) stated:
A judgment n.o.v. should be entered only in a clear case, and any doubts should be resolved in favor of the verdict. Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970). In considering a motion for judgment n.o.v., the evidence, together with all reasonable inferences therefrom, is considered in the light most favorable to the verdict winner. Miller v. Checker Cab Co., 465 Pa. 82, 348 A.2d 128 (1975).
See also, O'Malley v. Peerless Petroleum, Inc., 283 Pa. Super. 272, 423 A.2d 1251 (1980).
The lower court, in pertinent part, charged the jury as follows:
However, it is also true, as I shall read to you, that a possessor of land is subject to liability to his invitees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety if, but only if, he should expect that they will not discover or realize the danger, or fail to protect themselves against it. And, further, a possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land ...