Summary
In Jones v. McNichol Paving Cons. Co., 317 Pa. 246, a fellow worker of the decedent in the present case was injured by the same slide of earth, and brought suit against this defendant.
Summary of this case from Walker v. McNichol Pav. Const. Co.Opinion
December 4, 1934.
January 7, 1935.
Negligence — Generally — Excavation by subcontractor — Bank in dangerous state — Shoring performed by general contractor — Liability of subcontractor.
1. Where a subcontractor, in accordance with his contract — with the general contractor, completes the excavation of a lot without negligence in the actual excavating, the subcontractor is not liable to a third person injured by reason of the collapse of the bank created by the excavation, where it appears that under the contract the shoring of the bank was to be done by the general contractor, that the general contractor commenced shoring the bank the day after the subcontractor completed his excavation, and that the bank collapsed about eight days later because of an error of judgment or of negligence on the part of the general contractor in performing the shoring work. [249-53]
Evidence — Admission — Pleadings — Failure to file affidavit of defense — Instrumentality — Admission of excavation work — Proof that shoring was done by other person.
2. Where plaintiff in his statement of claim in an action of trespass for personal injuries avers that the defendant, under a contract with the general contractor, performed certain excavation work on designated premises, the defendant, by failing to file an affidavit of defense, admits the truth of such averment, but is not precluded from showing that the accident did not occur in connection with the work of excavation but happened through negligence in the shoring of the bank which had been excavated by defendant, and that the shoring was not included in the excavation work of defendant and was done by another. [248-9]
Argued December 4, 1934.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 243, Jan. T., 1934, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1931, No. 5545, in case of George Jones v. McNichol Paving Construction Company. Judgment affirmed.
Trespass for personal injuries. Before STERN, P. J.
Special findings made by jury, including finding of damage to plaintiff in amount of $25,000. Judgment entered on finding for defendant.
The facts are stated in the opinion of the lower court, STERN, P. J., as follows:
The plaintiff, without any fault on his part, was severely injured as the result of an accident. The jury made special findings of fact, one of which was that some human agency was negligent and thereby caused the accident. The plaintiff, therefore, is obviously entitled to legal redress. The only question in the case is as to the party liable. The plaintiff is receiving workmen's compensation, but now seeks to obtain the larger recovery which he would enjoy if the present defendant were found to be responsible for his injuries.
The first contention of the plaintiff is that the defendant, by failure to file an affidavit of defense, precluded itself from the right to show that it was not the party in control of the "instrumentality" which occasioned the accident. The statement of claim alleged that the defendant, under a contract with the general contractor, was engaged in certain excavation work on a lot at Twelfth and Market Streets, Philadelphia, and that the said excavation work was done by the defendant, acting through its servants, agents and employees in the course of its business. The Practice Act provides that, in actions of trespass, the averments, in the statement, of the person by whom the act was committed, the agency or employment of such person, the ownership or possession of the vehicle, machinery, property or instrumentality involved, and all similar averments, if not denied, shall be taken to be admitted. It is clear, therefore, that by not filing an affidavit of defense the defendant admitted the truth of the averment and the excavation work was performed by it, its agents and employees. And such indeed was the fact, nor has it been at any time denied by the defendant. The contention of the defendant, however, is that the accident did not occur in connection with the work of excavation, but that it happened through negligence in the shoring of the bank which had been excavated by the defendant. The defendant argues that if, for example, a plaintiff were to allege that the defendant did the steel work on a structure, and if the defendant admitted this, either expressly or by failing to file an affidavit of defense, but it appeared that the accident to the plaintiff happened through negligence in the course of the plaster work, the defendant could prove this by way of defense. So, in the present case, the defendant could not deny that it did the excavation work, but it contends that this does not constitute an admission as to its liability for the accident unless it occurred in the course of, or by reason of, the excavation work; the defendant is foreclosed merely from showing that it was not the contractor which did the work of excavation, and, therefore, was not liable even for negligence in the excavation work.
The real question involved is whether shoring is included in excavation, so that the admission of responsibility for the work of excavation involved an admission of responsibility for the work of shoring. The plaintiff insisted that the shoring was a part of the excavation work. The defendant contended to the contrary, and this was one of the main issues of the trial. The defendant offered in evidence its contract with the general contractor, wherein it was expressly provided that underpinning and shoring were not included in the defendant's contract. The defendant also offered testimony to prove that whatever shoring was, in fact, done was done by the general contractor. If excavation does not include shoring then the admission of doing the excavation work would not be an admission of doing the shoring work. It seems obvious that it was proper to admit the defendant's testimony on this point, for otherwise we would reach the apparently unjust result that the defendant, merely by admitting that it did the excavation work, would thereby be precluded from disclaiming responsibility for negligence in the shoring work, although the latter was an entirely distinct operation. It cannot be said that in ordinary experience and terminology shoring is so integrated a part of excavating that an admission as to control of, and responsibility for, the latter necessarily involves an admission as to control of, and responsibility also for, the former unless expressly denied by filing an affidavit of defense.
The second principal contention of the plaintiff is that even though the general contractor may have reserved to itself the function and duty of shoring, nevertheless, the defendant, which, by its work of excavation, created the bank which subsequently collapsed, should be held responsible to third persons thereby injured. This argument is based on the principle laid down by the Supreme Court in the recent case of Bisson v. Kelly, 314 Pa. 99, opinion by MAXEY, J. In that case a subcontractor which had fully performed the work of building a wall as entrusted to it under a contract with the general contractor, was nevertheless held liable to a person injured by the falling of a tile from the wall four days after the subcontractor's work was completed, the theory of the decision being that when a person constructs something which is dangerous he remains liable for an accident resulting therefrom, unless he has reasonable ground to rely upon an assumption that some other person whose duty it was to perform additional work which would remove the danger, was, in fact, entering upon the performance of such work. It is to be noted that in the Bisson v. Kelly Case the defendant saw that for a period of four days the necessary additional work was not being performed, and indeed the defendant knew, or should have known, that this additional work could not be performed during that time because it was necessary, before starting it, to wait until the cement on the structure had hardened, and the defendant, therefore, knew, or should have known, not only that the work was being left in a dangerous condition, but that that condition would probably continue and was, in fact, continuing for a period of at least a few days. In short, there was an interregnum during which it was reasonably to be foreseen that the structure as left by the defendant would be unsafe, and the defendant, after creating this condition, had no right to walk away from it and leave third persons exposed to the resulting menace and then seek to avoid responsibility by the plea that the defendant was under no duty to the general contractor to do any more work than it had already done.
In the present case the jury expressly found that there was no negligence in the actual work of excavating — in other words, that there was no necessity for shoring as the excavating progressed — but that the negligence consisted in not shoring the bank after the excavating had been completed. The excavation of the bank which subsequently collapsed was finished on May 28th, and on the very next day the employee of the general contractor did shoring work on the bank. The accident itself did not occur until eight days later. It is true that the shoring done by the general contractor proved to be inadequate and was designed to protect the men working in the caissons from the falling upon them of loose dirt and pebbles rather than to prevent the bank itself from caving in. This, however, was a matter of poor judgment or of negligence on the part of the general contractor. The latter realized that under its contract with the defendant it had to do whatever shoring work was necessary, and when the excavation work was done it took charge of the situation and did what shoring it thought was sufficient. If, by reason of the inadequacy of this work, an accident occurred, the responsibility should not rest upon the defendant, which had not only completed its own job of excavating the bank, but had seen the general contractor thereupon take up the work of shoring. If, in the Bisson v. Kelly Case, the general contractor had appeared upon the scene after Kelly had finished the construction of the wall, and had undertaken the work of tying the wall into the ceiling, and by reason of the inadequacy of the work thus done an accident later occurred, Kelly would not, in our opinion, have been held liable. The difference, then, between the Bisson v. Kelly Case and the present case is that in the former the defendant left the work in a dangerous condition and the accident happened before some other responsible party removed or attempted to remove the danger; whereas in the present case the defendant, after completing its work, saw that the general contractor undertook the work of shoring, and several days later the accident occurred because this shoring work, as events proved, was not sufficient to meet the requirements of safety. If, under such circumstances, the defendant were to be held liable, it would amount to fastening responsibility upon it not only for its own part of the general work of construction, and not only (as in the case of Bisson v. Kelly) for seeing to it that some other party should appear and at least begin the work designed to make the structure safe, but also that this other party should perform the necessary additional work adequately and without negligence.
It is to be kept in mind that the accident in the present case did not occur during the process of excavating the bank. If it had so occurred the defendant might have been held liable even though it had not contracted to do any shoring. But, as the jury found, there was no negligence up to the time when the defendant left the bank. The defendant's witnesses testified that shoring need not be done as the excavation work progressed, and the jury found, as a fact, that the negligence which caused the accident was only in the failure to shore the bank after the excavation had been completed. Such failure was that of the general contractor, which undertook to do this part of the job, but did it inadequately, that is, as the jury found, negligently.
For the reasons thus expressed, the court feels constrained to enter judgment for the defendant upon the jury's special findings of facts. It is not thought that the various points raised by the plaintiff in support of his motion for a new trial require any special discussion.
The verdict was undoubtedly too high and if the plaintiff were to recover at all the court would order a remittitur. In view, however, of the conclusions reached by the court in regard to the defendant's liability, this question becomes academic.
The plaintiff's is rule for a new trial is discharged. The defendant's rule for a new trial is discharged. The plaintiff's motion for judgment is overruled. The defendant's rule for judgment is made absolute, and, on the whole record, judgment is now entered for the defendant.
Plaintiff appealed.
Error assigned, inter alia, was judgment, quoting record.
C. D. Swartz, of Swartz, Campbell Henry, with him Raymond Pace Alexander, for appellant.
Charles E. Kenworthy, with him Ralph B. Evans, for appellee.
The judgment of the court below is affirmed on the opinion of Judge STERN.