Opinion by
Mr. Justice Eagen,
The plaintiff was seriously injured in the course of his employment through the use of defective equipment, furnished his employer by a third party. He instituted this action for damages against the supplier of the equipment. The latter joined plaintiff’s employer as an additional defendant. At trial, the jury awarded plaintiff a substantial verdict against the original defendant. . The additional defendant was exonerated by the ".jury. Post trial, the court below directed a new trial between the plaintiff and the original defendant, limited to the question of damages. From this order, the plaintiff appeals. The original defendant appeals from the orders of the court denying judgment in its favor notwithstanding the verdict and refusing to direct that the additional defendant be a party to the second trial.
[581]*581The factual background of the accident may be capsuled thusly:
The plaintiff is a painter by trade and was directed by his employer, Harry Weber, the additional defendant, to assist in painting the interior of a church for which Weber had the contract. The scaffolding equipment was furnished and erected by the original defendant, Safeway Steel Scaffolds Company of Pittsburgh, a corporation.
The equipment consisted, in part, of towers extending into the air, approximately 37 feet from the floor. These were connected by walkways, consisting of two “picks” running from one tower to another. Each “pick” was 22 feet long, 1 foot wide, made of wood with slats as the walking surface, supported by rungs underneath which doweled into the side rails. Each side rail was reinforced with a steel rod running lengthwise.
The domed contour of the walls and ceiling of the church was such, that it was impossible to reach and paint every portion thereof from the deck or platform of the towers or the walking surface of the “picks.” The position of the congregational pews on the floor of the church rendered it impossible to move the towers.
In order to reach one of these difficult or inaccessible portions of the church interior, the plaintiff and a fellow employee moved a “pick” onto the deck of the tower and projected it out approximately 4 to 5 feet in the direction where the work had to be done. It was then securely tied down to the steel framework of the tower on the work side, while plaintiff’s fellow employee sat on the “pick” at the opposite side of the tower in order to hold the “pick” firm. At this juncture, the 22 foot “pick” projected out 4 or 5 feet on the side where plaintiff was working, with 7 feet of its length supported by the tower itself and with 10 feet [582]*582extending out on the opposite side of the tower. When the plaintiff stepped out 2 or 3 feet on the projected portion of the “pick” to paint, it suddenly snapped off and he was plummeted with great force to the floor and pews beneath. He suffered painful and very serious permanent injuries.
A subsequent examination disclosed that several of the “picks” furnished by the original defendant were in a very defective condition. The particular one causing plaintiff’s fall had been split some time before at the point of fracture involved herein, it being evident that a saw cut had run a half inch deep into the side rail at this point.
Judgment n.o.v.
The original defendant admits that the evidence is amply sufficient to support the finding by the jury that it was guilty of negligence. The only contention raised on appeal in favor of its motion for judgment non obstante veredicto is that, under the facts, the plaintiff was guilty of contributory negligence as a matter of law. With this position, we cannot agree. The question was for the jury.
Certain appropriate principles of law are fundamental: (1) That the jury winner is entitled to every fact and inference of fact which may reasonably be deduced from the evidence, Metro v. Long Transportation Co., 387 Pa. 354, 127 A. 2d 716 (1956) ; (2) That the question of contributory negligence should not be taken from the jury’s consideration except in a clear case and only where the contributory negligence is so clearly revealed that reasonable minds cannot legitimately differ as to the conclusion of its existence: Chicago Express, Inc. v. Robson, 405 Pa. 207, 174 A. 2d 846 (1961) ; and, Greco v. 7-Up Bottling Co. of Pitts., 401 Pa. 434, 165 A. 2d 5 (1960); (3) One does not have to anticipate that another will negligently cause him [583]*583injury, in other words, he is not bound to guard against lack of ordinary care on the part of another, Schofield v. Druschel, 359 Pa. 630, 59 A. 2d 919 (1948) ; Fleischman v. Reading, 388 Pa. 183, 130 A. 2d 429 (1957); and, Mutter v. Slaymaker, 404 Pa. 369, 171 A. 2d 779 (1961).
In the instant action, the plaintiff had every reason to rely upon the fact that the original defendant had furnished equipment in good condition, which was reasonably safe for the purpose of performing the job to be done. The day of the accident was the very first occasion he had cause to use it. The lighting in the church furnished by chandeliers, which hung far below the heighth of the temporarily erected towers upon which the plaintiff was working, cast their light downward towards the floor. The fact that he did not see or observe the existing defect in the particular “pick” is readily understandable. To expect him to do so would be unreasonable.
It is argued that the particular use made by the plaintiff of the “pick,” which broke and caused the fall, constituted a dangerous adventure and that he voluntarily assumed the risk of the consequences that followed. The answer to this is that the particular use of the “pick” made by the plaintiff at the time of the accident was not unusual, but rather the customary and the usual practice followed by other such tradesmen in like situations. Several witnesses testified to this fact. Not one offered contradiction. This is what is known in the trade as a “thrustout.” The Department of Labor and Industry of the Commonwealth recognizes that such a practice is followed, as is indicated by a provision in relation thereto in its Regulations for Construction and Repairs. These regulations provide for the use of life belts and life lines where workmen “crawl out on thrustouts” or projecting beams. However, the evidence was unanimous in this [584]*584case that, under the prevailing conditions, the use of these safety measures would be impractical and imperil rather than insure the safety of the plaintiff.
In determining the standard of conduct of one who is injured in the performance of his employment, the working conditions and all of the circumstances incident thereto, including his obligation to do his job, must be considered: Stringert v. Lastik Products Co., Inc., 397 Pa. 503, 155 A. 2d 625 (1959). If in performing his employment, a workman conforms to the ordinary usage thereof, this is evidence of the exercise of due care and indicates lack of careless conduct: Mutter v. Slaymaher, supra. As stated in Van Zandt v. Phila. B. & W. R. R. Co., 248 Pa. 276, 93 A. 1010 (1915), at 281: “What is required of the workman is that he exercise care for his safety according to the circumstances. He knows he is occupying a place of great danger and his care must be commensurate with that danger. He is equally cognizant of the fact that he must perform faithfully the services required of him.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by
Mr. Justice Eagen,
The plaintiff was seriously injured in the course of his employment through the use of defective equipment, furnished his employer by a third party. He instituted this action for damages against the supplier of the equipment. The latter joined plaintiff’s employer as an additional defendant. At trial, the jury awarded plaintiff a substantial verdict against the original defendant. . The additional defendant was exonerated by the ".jury. Post trial, the court below directed a new trial between the plaintiff and the original defendant, limited to the question of damages. From this order, the plaintiff appeals. The original defendant appeals from the orders of the court denying judgment in its favor notwithstanding the verdict and refusing to direct that the additional defendant be a party to the second trial.
[581]*581The factual background of the accident may be capsuled thusly:
The plaintiff is a painter by trade and was directed by his employer, Harry Weber, the additional defendant, to assist in painting the interior of a church for which Weber had the contract. The scaffolding equipment was furnished and erected by the original defendant, Safeway Steel Scaffolds Company of Pittsburgh, a corporation.
The equipment consisted, in part, of towers extending into the air, approximately 37 feet from the floor. These were connected by walkways, consisting of two “picks” running from one tower to another. Each “pick” was 22 feet long, 1 foot wide, made of wood with slats as the walking surface, supported by rungs underneath which doweled into the side rails. Each side rail was reinforced with a steel rod running lengthwise.
The domed contour of the walls and ceiling of the church was such, that it was impossible to reach and paint every portion thereof from the deck or platform of the towers or the walking surface of the “picks.” The position of the congregational pews on the floor of the church rendered it impossible to move the towers.
In order to reach one of these difficult or inaccessible portions of the church interior, the plaintiff and a fellow employee moved a “pick” onto the deck of the tower and projected it out approximately 4 to 5 feet in the direction where the work had to be done. It was then securely tied down to the steel framework of the tower on the work side, while plaintiff’s fellow employee sat on the “pick” at the opposite side of the tower in order to hold the “pick” firm. At this juncture, the 22 foot “pick” projected out 4 or 5 feet on the side where plaintiff was working, with 7 feet of its length supported by the tower itself and with 10 feet [582]*582extending out on the opposite side of the tower. When the plaintiff stepped out 2 or 3 feet on the projected portion of the “pick” to paint, it suddenly snapped off and he was plummeted with great force to the floor and pews beneath. He suffered painful and very serious permanent injuries.
A subsequent examination disclosed that several of the “picks” furnished by the original defendant were in a very defective condition. The particular one causing plaintiff’s fall had been split some time before at the point of fracture involved herein, it being evident that a saw cut had run a half inch deep into the side rail at this point.
Judgment n.o.v.
The original defendant admits that the evidence is amply sufficient to support the finding by the jury that it was guilty of negligence. The only contention raised on appeal in favor of its motion for judgment non obstante veredicto is that, under the facts, the plaintiff was guilty of contributory negligence as a matter of law. With this position, we cannot agree. The question was for the jury.
Certain appropriate principles of law are fundamental: (1) That the jury winner is entitled to every fact and inference of fact which may reasonably be deduced from the evidence, Metro v. Long Transportation Co., 387 Pa. 354, 127 A. 2d 716 (1956) ; (2) That the question of contributory negligence should not be taken from the jury’s consideration except in a clear case and only where the contributory negligence is so clearly revealed that reasonable minds cannot legitimately differ as to the conclusion of its existence: Chicago Express, Inc. v. Robson, 405 Pa. 207, 174 A. 2d 846 (1961) ; and, Greco v. 7-Up Bottling Co. of Pitts., 401 Pa. 434, 165 A. 2d 5 (1960); (3) One does not have to anticipate that another will negligently cause him [583]*583injury, in other words, he is not bound to guard against lack of ordinary care on the part of another, Schofield v. Druschel, 359 Pa. 630, 59 A. 2d 919 (1948) ; Fleischman v. Reading, 388 Pa. 183, 130 A. 2d 429 (1957); and, Mutter v. Slaymaker, 404 Pa. 369, 171 A. 2d 779 (1961).
In the instant action, the plaintiff had every reason to rely upon the fact that the original defendant had furnished equipment in good condition, which was reasonably safe for the purpose of performing the job to be done. The day of the accident was the very first occasion he had cause to use it. The lighting in the church furnished by chandeliers, which hung far below the heighth of the temporarily erected towers upon which the plaintiff was working, cast their light downward towards the floor. The fact that he did not see or observe the existing defect in the particular “pick” is readily understandable. To expect him to do so would be unreasonable.
It is argued that the particular use made by the plaintiff of the “pick,” which broke and caused the fall, constituted a dangerous adventure and that he voluntarily assumed the risk of the consequences that followed. The answer to this is that the particular use of the “pick” made by the plaintiff at the time of the accident was not unusual, but rather the customary and the usual practice followed by other such tradesmen in like situations. Several witnesses testified to this fact. Not one offered contradiction. This is what is known in the trade as a “thrustout.” The Department of Labor and Industry of the Commonwealth recognizes that such a practice is followed, as is indicated by a provision in relation thereto in its Regulations for Construction and Repairs. These regulations provide for the use of life belts and life lines where workmen “crawl out on thrustouts” or projecting beams. However, the evidence was unanimous in this [584]*584case that, under the prevailing conditions, the use of these safety measures would be impractical and imperil rather than insure the safety of the plaintiff.
In determining the standard of conduct of one who is injured in the performance of his employment, the working conditions and all of the circumstances incident thereto, including his obligation to do his job, must be considered: Stringert v. Lastik Products Co., Inc., 397 Pa. 503, 155 A. 2d 625 (1959). If in performing his employment, a workman conforms to the ordinary usage thereof, this is evidence of the exercise of due care and indicates lack of careless conduct: Mutter v. Slaymaher, supra. As stated in Van Zandt v. Phila. B. & W. R. R. Co., 248 Pa. 276, 93 A. 1010 (1915), at 281: “What is required of the workman is that he exercise care for his safety according to the circumstances. He knows he is occupying a place of great danger and his care must be commensurate with that danger. He is equally cognizant of the fact that he must perform faithfully the services required of him. Both obligations are resting upon him, and each must be met with a due regard to the other.”
New Trial
In instructing the jury as to the claim for loss of impairment of future earning power, the court stated that in reducing this element of damage to its present worth, the jury was permitted to use a measure other than the prevailing legal rate of interest. In other words, the court allowed the jury to select its own rate of interest in calculating this sum. This instruction was influenced by a specific request on the part of plaintiff’s counsel. Unfortunately, these instructions are contrary to the rule enunciated by this Court in Windle v. Davis, 275 Pa. 23, 118 A. 503 (1922), wherein at page 29, we said: “A jury must compute damages [585]*585according to law, not merely to their own satisfaction, and when passing upon the question of future damages they can allow, as the present worth, such sum only as put at simple interest will, with the accumulations of interest, amount to such damages at the time or times in the future when the jury find from the evidence they will be sustained. Moreover, the interest must he computed at the lawftil rate of six per cent} See 17 Corpus Juris 906.” This rule was at least inferentially reaffirmed in Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A. 2d 123 (1957); and Sherman v. Manufacturers L. & H. Co., 389 Pa. 61, 132 A. 2d 255 (1957).
The lower court recognizing that the trial instructions in this respect were contrary to the rule of Windle v. Davis, supra, and further that the element of diminution of earning power constituted a major element in the case, held that this portion of the charge was erroneous and required a new trial. This was the sole reason stated for such action.
It is argued by the plaintiff that the rule enunciated in Windle v. Davis, supra, in view of economic conditions, is antiquated and unrealistic in modern times. We are all aware that present interest rates are different than as of the year this rule was first written. In fact, they presently vary from day to day, place to place, and under different conditions in the same area. There must be a fixed rule to aid juries in calculating the present worth of such elements of damage and to guide trial courts in aiding the jury in resolving such difficult questions. It is our conclusion that a change in the rule would lead only to confusion and chaos and add greater difficulty in the trial of such cases. The rule is, therefore, reaffirmed.
[586]*586We thoroughly agree with the conclusion of the lower court that the jury was completely justified in exonerating from liability the additional defendant, Weber. There is no good reason why this issue should be retried.
The orders of the lower court are affirmed.