Miller v. Hickey

Dissenting Opinion by

Mr. Justice Chidsey:

I am of the opinion that the negligence of the defendant in this case was for the jury and I would uphold the verdict in plaintiff’s favor as reduced in amount by the lower court.

After reviewing at length the evidence adduced by plaintiff and defendant respectively, the majority opinion states: “It will be instantly noted that plaintiff did not prove or offer to prove that the inspection made by Blake was not a proper one or was not one that was customary in the trade, or that a proper inspection would have disclosed the dangerous or defective condition of the part of the fire escape which broke.” (Italics, the author’s) It was not incumbent upon plaintiff to prove that there had not been a proper inspection of the fire escape. This was a matter of countervailing proof by the defendant. Plaintiff’s burden was to establish that the defendant knew or ought to have known that the fire escape was not in a reason *336 ably safe condition for tbe performance of the task required of him.

A possessor of premises owes to a business visitor the affirmative duty to keep the premises in a reasonably safe condition or to warn him of dangerous conditions of which the possessor has, or should have, knowledge. Where there is no patently obvious danger, a business visitor is not required to make an independent survey to determine whether the possessor of premises has performed his duty of exercising due care for the safety of the business visitor: Kulka v. Nemirovsky, 314 Pa. 134 , 170 A. 261 ; Debenjak v. Parkway Oil Company, 159 Pa. Superior Ct. 603 , 49 A. 2d 521 . A business visitor is defined in Restatement, Torts, Section 332, as “. . . a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.” And this includes those coming upon the land for a purpose connected with their own business which itself is directly or indirectly connected with a purpose for which the possessor uses the land: See Straight v. B. F. Goodrich Company, 354 Pa. 391, 394 , 47 A. 2d 605 ; Musto v. Lehigh Valley Railroad, 327 Pa. 35, 39 , 192 A. 888 . In the instant case plaintiff was a business visitor and under all the evidence the jury could find that defendant did not perform the duty owed him to maintain the fire escape in a reasonably safe condition for the performance of the work undertaken.

As stated in the majority opinion, “. . . negligence need not be proved by direct evidence, but may be inferred from attendant circumstances if the facts and circumstances are sufficient to reasonably and legitimately impute negligence:”. And as also stated therein, “. .. the testimony must be viewed in the light most advantageous to the plaintiff and all reasonable inferences from and all conflicts in the testimony must be *337 resolved in plaintiff’s favor:”. So considered, the jury was clearly justified in finding from plaintiff’s proofs that the western end of the fire escape (a most important part at the turn leading to the drop) was in a weakened and dangerous state and that its condition, resulting from rust and gradual deterioration, ought to have been discovered and remedied by the owner-defendant. The house and fire escape thereon were old. It was described as an “antique” building. When one of the plaintiff’s witnesses immediately after the accident gave a yank at a handgrip on the inside wall of the building beside the ladder drop, it “pulled away”; it was “very rusted”; the wood to which it was fastened was “very poor”, “weatherbeaten” and the “screws had no hold at all in there, they just came right out.” The plaintiff testified that the railing that gave way was corroded and deteriorated at the base — “You could see small narrow holes. . .” in it. Screws that had apparently fallen with the railing “had no threads”. Moran, a fellow workman, testified that a whole section of the railing at the west end fell to the ground and that the upright referred to by plaintiff, and other parts of the railing were found to be “corroded, almost rusted through.” The other two fellow workmen testified to the same effect.

Defendant’s countervailing evidence consisted solely of the testimony of William E. Blake who said he had twice inspected the fire escape; that he looked for missing bolts, nuts or broken parts and apparently made a limited spot check of the railing. He stated that the fire escape was rusted and there was the possibility of pitting underneath. However, he did not scrape it at any point, stating that “I can tell, or at least I think I can tell with my eyes.” The trial judge in his charge left to the jury whether there had been a proper inspection. This was apparently upon the theory that defendant was responsible for the negli *338 gence, if any, of his agent’s employe and no objection was made or issue raised by the defendant in this regard. The jury could well have found that under the circumstances this was entirely too casual an examination, and patently insufficient for a structure or instrumentality designed to carry safely persons in numbers, hurriedly escaping from fire. This inspector produced no reports of his inspections (although he stated he had made one in his first inspection in June) and apparently he was daily engaged in the inspection of numerous buildings. Indeed the jury could have found that no inspection had been made by him. They had the right to reject any and all oral evidence adduced by the defendant. In any event, Blake’s testimony was for the jury. See Hardy v. Philadelphia National League Club, 99 Pa. Superior Ct. 326 (allocatur refused).

A case which is completely controlling here is Newingham v. The J. C. Blair Company, 232 Pa. 511 , 81 A. 556 , where the plaintiff, employe of an independent contractor, was engaged in repairing defendant’s roof and at the direction of the defendant, used an outside fire escape to go to and from the roof. While descending the fire escape, one of its platforms gave way, causing the injuries sustained. The Court in upholding liability said at page 520: “To be sure the use which the defendant company directed should be made of it by the plaintiff, was not the ordinary office of a fire escape, but it was apparently not an improper use, and at any rate it was placed at the disposal of the plaintiff and his fellow workmen, by the express direction of the officer of the defendant company. In making use of the fire escape, as directed and required, the plaintiff had a right to rely on the presumption that the defendant had performed its duty in providing a reasonably safe means of access to the roof.” In the instant case there was no direction to *339 use the fire escape in the accomplishment of its painting, but the necessity of its use is obvious. Photographs introduced into evidence demonstrate this and there was no contention by defendant that the plaintiff should have used other means. The only distinction between the Newingham , and the instant case is that in Newingham the defendant’s negligence was the failure to make an inspection, and here (if consideration is given to the witness Blake’s testimony) the failure to make a proper inspection — a distinction without difference. Also pertinent in this connection are Straight v. B. F. Goodrich Company, supra; Debenjak v. Parkway Oil Company, supra; Kulka v. Nemirovsky, supra.

Lentz v. Allentown Bobbin Works, 291 Pa. 526 , 140 A. 541 , which the majority opinion principally relies upon as controlling, is clearly distinguishable. There-an injured roofer was engaged in reroofing. His use of the roof was in the performance of the specific task undertaken. Unlike a fire escape, a roof ordinarily is not designed to be walked upon. Its examination must necessarily be superficial. It cannot be thorough enough to insure safety for those who walk or work on it without its removal, the very task in which the injured plaintiff was engaged. A fire escape, on the other hand, is designed to safely carry those who walk on it. There was no negligence established in the Lents case with regard to inspection, while in the instant case there was sufficient evidence to find that the unsafe condition of the fire escape could readily have been ascertained by an inspection properly made. And, as said before, the jury was free to disbelieve in whole or in part testimony in this regard adduced by the defendant. None of the other cases cited in the majority opinion are similar in their facts or analogous. No one of them departs from the rule that a possessor of premises owes to a business visitor the affirmative duty to keep the premises in a reasonably safe condition and *340 protect Mm from dangerous conditions of which tlie owner has or ought to have notice.

Equally inapplicable are cases cited by defendant. In Hotchkin v. Erdrich, 214 Pa. 460 , 63 A. 1035 , defendant contracted with plaintiff’s employer for work to be done at the top of a tall chimney stack. The plaintiff inspected and tested the rungs or iron bars of a crude ladder in the inside of a chimney as he ascended and the Court held it to be apparent from his own testimony that he was testing the safety of the ladder for himself, and was relying upon his own judgment. When one of the bars pulled out and he fell to the bottom of the stack, he was held to have assumed the risk. In Myers v. Edison Electric Illuminating Company, 225 Pa. 387 , 74 A. 223 , the danger arising from an uninsulated wire carrying electricity was held to be obvious and the risk of injury assumed by the plaintiff. In Hanley v. Carnegie Steel Company, 256 Pa. 44 , 100 A. 543 , plaintiff was injured as a result of the giving way under his weight of a part of the roof which he was engaged in demolishing. He assumed a risk that was incidental to the specific task undertaken. In Nettis v. General Tire Company of Philadelphia, Inc., 317 Pa. 204 , 177 A. 39 , recovery was denied because although several ways of cleaning the windows of defendant’s building were available, plaintiff selected the most dangerous method.

The doctrine of exclusive control is elaborately discussed in the majority opinion. No reliance was placed thereon by the plaintiff and no such contention was necessary. His case was otherwise amply established.

Defendant contended that conceding the duty ordinarily owed to business visitors by the owner of real estate to keep the premises in a reasonably safe condition, no such duty was owed to the plaintiff, admittedly-an expert in painting structural iron work, in- *341 eluding fire escapes, because it was part of plaintiff’s duty in connection with the painting to be done to discover latent defects in the structural condition of the fire escape. With this we cannot agree. The work called for was the painting only of the fire escape after the customary and necessary scraping and scaling. The contract covered the building and provided that “All the wood and metal work of the entire exterior front, sides and rear, including fire escape will be thoroughly scraped free of all loose and scaling particles, loose putty removed, and reputtied and receive two (2) coats of . . . paint . . It was an ordinary painting job of the entire premises. Plaintiff was to paint, not repair the fire escape, and he had a right to assume that it was in a sufficiently sound condition to permit its necessary use in the performance of his task. A fire escape from its very nature and the purpose which it serves must presumably be in safe condition for use at all times. The railing is a necessary component part, and, according to plaintiff’s testimony, he did not exert undue pressure upon it. He said that he did not push against it and apparently was using it in a customary manner. It is to be noted that he had scraped the major portion of the fire escape without encountering any serious or dangerous corrosion, and was not engaged in scraping or painting when the accident happened, but on his way to obtain some paint for a fellow workman who was standing on the fire escape cleaning window frames. The situation was no different than if the railing had collapsed when he first went on the fire escape to commence his work.

Defendant relies upon Valles v. Peoples-Pittsburgh Trust Company, 339 Pa. 33 , 13 A. 2d 19 , in support of a contention that plaintiff failed in his proof of negligence in that no evidence was adduced establishing that his employer, an independent contractor, was not informed by defendant of the defective condition of the *342 fire escape. This Court held in that case that where an employe of an independant contractor sued the owner of a building in an action in trespass for injuries resulting from the maintenance of a known dangerous condition that the burden of proving that the owner failed to warn the independent contractor of the dangerous condition was upon the plaintiff. Where the owner has actual knowledge of the existence of a dangerous condition, he is not required to warn every subcontractor or laborer who comes upon the premises, but in such circumstances the extent of the duty is to warn the contractor of the existence of the dangerous conditions. See Engle v. Reider, 366 Pa. 411 , 77 A. 2d 621 . Where the owner is aware of the dangerous condition, the law with regard to the burden of proof is clear. The instant case, however, is clearly distinguishable from Valles v. Peoples-Pittsburgh Trust Company, supra, and Engle v. Reider, supra, in that there was no proof of actual knowledge by the owner of the alleged dangerous condition. There was no proof of actual knowledge and defendant’s liability exists by reason of the finding of the jury that he would have known if a reasonable and proper inspection had been made.

The rule with regard to the burden of proof a$ enunciated in the Valles case and in Engle v. Reider, supra, has never been held by this Court to apply to cases other than those in which the owner had actual knowledge of the dangerous condition. A recovery by plaintiff in the instant case was not dependent upon proof of a failure by defendant to notify plaintiff’s employer, Kooperman, of the defective condition of the fire escape.

Mr. Justice Horace Stern and Mr. Justice Jones join in this dissenting opinion.