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decided: July 2, 1987.


Appeal from the Order of the Superior Court of Pennsylvania entered on November 1, 1985 at No. 101, Pittsburgh, 1984, Affirming the Order of the Court of Common Pleas Civil Division, Allegheny County, Pennsylvania dated December 21, 1983, and Judgment entered December 27, 1983, at No. GD80-03690.


Frederick N. Egler, Avrum Levicoff, Egler, Anstandig, Garrett & Riley, Pittsburgh, for appellant.

Edward J. Balzarini, Sr., Balzarini, Carey & Maurizi, Pittsburgh, for Elizabeth O'Donnell, etc.

Arthur R. Gorr, Gorr Dell & Loughney, Pittsburgh, for R.G. Smith Co., Inc.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Papadakos, J., did not participate in the consideration or decision of this case. Larsen and Zappala, JJ., dissent without opinion.

Author: Flaherty

[ 515 Pa. Page 308]


Appellee's decedent, James H. O'Donnell, was fatally injured in his employment by R.G. Smith Co., Inc. as a painter in a Westinghouse facility. A jury trial ended in a verdict for appellee in the amount of $750,000.*fn1 Westinghouse's motions for judgment n.o.v. and a new trial were denied and Superior Court affirmed. 352 Pa. Super. 623, 505 A.2d 1039.

[ 515 Pa. Page 309]

Westinghouse argues the trial court's refusal to charge the jury on contributory negligence was error. We agree. Because we have concluded that there was sufficient evidence of contributory negligence presented to warrant an instruction to the jury on that issue, we reverse and remand for a new trial.*fn2

During the summer of 1979, Westinghouse contracted with R.G. Smith to paint a portion of Westinghouse's East Pittsburgh facility designated Aisle A. Due to time constraints for performance of the contract, it was not feasible to construct scaffolding. Rather, Smith elected to use overhead cranes as work platforms. One crane carried the "blow-down" crew who used compressed air guns to "blow" clean the areas to be painted. A second crane carried the painting crew who applied paint to the areas which had already been cleaned.

The overhead cranes operated on tracks mounted along the top of the walls and running the length of the aisle. Atop the crane were two catwalks which spanned the entire length of the crane from track to track. Between the catwalks were the crane trolley and motor. One catwalk was located directly above the operator's cab which hung from the underside of the crane. It was accessible through an opening in the top of the cab. In order to reach the other catwalk it was necessary to climb onto the catwalk directly above the cab, then across and around the crane machinery and finally onto the remaining catwalk.

Aisle A, where the crew was working, consists of a series of bays separated by overhead steel support beams. The support beams project downward four feet from the ceiling and are approximately sixteen feet apart. Thus, when a crane is operated along the rails, it passes below an overhead support beam approximately every sixteen feet. The clearance between the beam and the catwalk is 455 1/2 inches,

[ 515 Pa. Page 310]

    and the clearance between the beam and handrail on the catwalk is 9 1/2 inches. There are also light fixtures on the ceiling approximately midway between each of the support beams. The fixtures do not project downward as low as the support beams, but they are low enough that there is insufficient clearance for a man of normal size to safely stand on the catwalk as the crane passes. Thus, as the crane moves along the rails, it is necessary for a man of normal size who is on the catwalk to crouch down in order to avoid colliding with a beam or light fixture.

James O'Donnell worked on the catwalk with Nick Batouyious, blowing down dirt from the areas to be painted. These two men along with Paul Elsessner, who operated the crane, comprised the "blow down" crew. As Elsessner could not see the two men on the catwalk, he had to listen for an audible signal from them indicating that the crane could be moved. The crew agreed upon a signaling system to facilitate safe movement of the crane. According to the testimony of Nick Batouyious, the agreed upon system was for the workers on the catwalk to lower their heads and verbally indicate that they were ready for the crane to move. The crane operator would verbally verify their readiness and then ring a bell to signal the movement of the crane. After the bell sounded, the operator again verbally verified that the workers on the catwalk were ready for the movement before he actually moved the crane. The crane stopped where the men on the catwalk indicated. Then the operator rang the bell to signal the end of the movement of the crane. This system was used successfully for a day and a half before the tragic accident which resulted in James O'Donnell's death.

On the day of the accident, the "blow-down" crew had been working as outlined heretofore. After lunch, when O'Donnell and Elsessner returned to the crane, they noticed that a compressor hose, which hung from the crane, was entangled in a fence on the floor. They agreed to immediately attempt to free it. O'Donnell ascended to the catwalk over the cab. Then ...

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