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NATHANIEL G. WOOD v. MARK E. SMITH AND ROBERT WHITTAKER (06/28/85)

filed: June 28, 1985.

NATHANIEL G. WOOD, EXECUTOR OF THE ESTATE OF REVEREND GEORGE H. WOOD, DECEASED, APPELLANT,
v.
MARK E. SMITH AND ROBERT WHITTAKER, IND., AND T/A SMITH AND WHITTAKER, A PARTNERSHIP



Appeal from the Judgment Entered on March 21, 1984 in the Court of Common Pleas of Bucks County, Civil Division, No. 78-8840-05-2.

COUNSEL

Richard A. Weisbord, Philadelphia, for appellant.

Michael S. Valimont, Doylestown, for appellees.

Wieand, Montemuro and Cercone, JJ. Wieand, J., files a concurring opinion in which Montemuro, J., joins.

Author: Cercone

[ 343 Pa. Super. Page 549]

This appeal arises from an Order of the Court of Common Pleas of Bucks County, sitting en banc, denying appellant's (plaintiff below) motion for a new trial. The case arose from an unfortunate mishap wherein the plaintiff's decedent fell off a scaffolding which had been erected outside of his house by the defendants with whom he had contracted to do masonry work on his home. The executor of the deceased's estate ("appellant") commenced actions in trespass

[ 343 Pa. Super. Page 550]

    for wrongful death and survival against the defendants. The case was tried before a jury. The jury found the decedent to be comparatively negligent and assessed that negligence at fifty percent (50%). The jury awarded damages in the amount of $10,000 in the wrongful death action and found no damages in the survival action. The court molded the verdict into an award in favor of the plaintiff in the amount of $5,000.00.

The appellant raises several issues in this appeal. They are (1) the jury's award of $10,000 in wrongful death damages was inadequate; (2) the trial court erroneously charged on wrongful death damages; (3) the trial court erred in refusing plaintiff's request to offer rebuttal evidence on the issue of the decedent's contributing negligence; (4) the trial court erred by refusing to explain decedent's right and duty as a landowner to inspect the work of his independent contractors; and (5) the lower court erred in refusing to adequately define the concept of negligence.

In passing upon the propriety of the refusal of a new trial, our inquiry is whether the court below abused its discretion or committed an error of law which controlled the outcome of the case. Abbott v. Steel City Piping Co., 437 Pa. 412, 263 A.2d 881 (1970). We will look to the charge in its entirety, against the background of evidence in the case, in order to determine whether an error was committed and whether any prejudice resulted. Jacob Kline Cooperage, Inc. v. Kistler, Inc., 286 Pa. Super.Ct. 84, 89, 428 A.2d 583, 586 (1981).

The primary duty of a trial judge in charging a jury is to clarify the issues so that the jury may comprehend the questions they are to decide. The instructions must give the jury a reasonable guide for the determination of the question of the defendant's or plaintiff's alleged negligence and on the degree of care or duty to inspect required by any person. The jury cannot determine whether

[ 343 Pa. Super. Page 551]

    a party is guilty of negligence or contributory negligence without knowing the degree of care required of that party. See, generally, Crotty v. Reading Industries, 237 Pa. Super.Ct. 1, 345 A.2d 259 (1975).

The appellant argues that the trial court erred in its instructions to the jury on the concept of negligence generally. Specifically, appellant argues that the trial court erred by refusing to explain the decedent's right and duty as a landowner to inspect the work of his independent contractors and by refusing to explain the legal significance of government and industry standards which had been testified to during the trial.

We look first to instructions on government and industry standards. The defendants submitted evidence that the scaffolding had been constructed by such methods as are generally used in the trade. The plaintiff submitted evidence that the scaffold did not comport with Occupational Health and Safety Act ("OSHA") and American National Standards Institute ("ANSI") standards pertaining to scaffolding. All of this evidence was properly admitted. In Brogley v. Chambersburg Engineering Co., 306 Pa. Super.Ct. 316, 452 A.2d 743 (1982), we held that evidence of OSHA regulations is admissible as a standard of care, the violation of which is evidence of negligence. See, also, Restatement (Second) of Torts § 286; and, 27 P.L.E. § 175, Violation of Statute or Ordinance: "Proof of the violation of a statute or ordinance is permissible, not as conclusive proof of negligence, but as evidence to be considered with all other evidence in the case." Accord: Riegert v. Thackery, 212 Pa. 86, 61 A. 614 (1905) (The Supreme Court recognized that the jury could be instructed on the weight to be given municipal ordinances in a negligence case.)

The specific question to be discussed here is whether, or to what extent, the trial court was required to instruct the jury on the ...


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