DOERR v. RAND’S, 340 Pa. 183 (1940)

16 A.2d 377

Supreme Court of Pennsylvania.October 31, 1940.
November 25, 1940.

Negligence — Possessor of land — Employer of independent contractor — Duty to wayfarers — Evidence — Sufficiency — Experts.

1. Where a possessor of land employs an independent contractor of unquestioned competence to do work which creates a condition adjacent to a public highway, the sole obligation of the possessor

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is to make such examination of the work upon completion as might be expected of a prudent layman, followed by inspections thereafter at reasonable intervals. [186]

2. In an action for personal injury, in which it appeared that the only evidence offered to establish negligence was the testimony of an expert witness which was based upon dubious facts assumed from the reading of an unsatisfactory photograph, it was held that the court below properly ruled it insufficient to establish negligence. [185-6]

Argued October 31, 1940.

Before SCHAFFER, C. J., MAXEY, DREW, LINN, STERN and PATTERSON, JJ.

Appeals, Nos. 209 and 210, March T., 1940, from judgment of C. P. Allegheny Co., July T., 1938, No. 1395, in case of Mary J. Doerr et al. v. Rand’s et al. Judgment affirmed.

Trespass for personal injuries. Before PATTERSON, J.

The opinion of the Supreme Court states the facts.

Verdict for wife plaintiff in sum of $4,500 and for husband plaintiff in sum of $500 and judgments entered for defendant n. o. v. Plaintiffs appealed.

Error assigned was judgment n. o. v.

Frank J. Lagorio, with him Lawrence B. Cook, for appellants.

Arthur M. Grossman, with him Raymond G. Flannery, for appellee.

OPINION BY MR. JUSTICE STERN, November 25, 1940:

While Mary J. Doerr, wife plaintiff, was standing on the sidewalk in front of a drug store operated by defendant company, a strip of opaque vitrolite glass, about three feet long, one foot wide, and three-quarters of an inch thick, fell and struck her, causing injuries for which she and her husband brought this suit. The glass had formed part of the facing of the building some fifteen

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feet above the pavement. Defendant brought in as additional defendants McVay-Dodge Company and Louis Golomb, the former being the general contractors engaged by it to install the glass and the latter a sub-contractor who had done the work. The jury rendered a verdict in favor of plaintiffs against defendant, but in favor of the additional defendants. The court in banc granted defendant’s motion for judgment n. o. v. and the present appeal is by plaintiffs from the judgment thus entered.

Confronted by an impressive line of authorities holding that the doctrine of res ipsa loquitur does not apply to such a case as this[1] plaintiffs realized at the trial that it was incumbent upon them to produce some evidence of facts or circumstances from which negligence on the part of defendant might properly be inferred. This burden they sought to meet by producing as an expert witness a civil engineer who testified that safe construction required that the glass be supported by steel angles or hooks anchored into the wall, and that it be calked around the edges in order to prevent the penetration of moisture. This witness had never examined the premises, but, by looking at a small and apparently none too clear picture of the store-front taken some three weeks after the accident, he ventured the observation that no

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supporting angles had been used and that the glass had been attached only by pressing it into mastic or adhesive material applied to the face of the building; he admitted there was evidence of calking. Defendant, on the other hand, insisted that the picture showed the presence of steel angles. At best, the testimony of plaintiffs’ expert was based upon dubious facts assumed from the reading of an unsatisfactory photograph, and, it being the only evidence offered to establish negligence, the court below was fairly justified in holding it insufficient for the purpose.

There is another aspect of the case which is conclusive. Defendant was not an insurer of the safety of persons passing on the highway in front of its premises; its duty was one of reasonable care. The glass was installed by a sub-contractor engaged by independent contractors, as to whose general competence no question is raised. The sole obligation of defendant was to make such an examination of the work upon completion as might be expected of a prudent layman,[2] followed by inspections thereafter at reasonable intervals. Defendant was not required to probe behind the glass to ascertain the manner in which it had been attached, especially as this would have involved a destruction of the work itself; it was justified in relying upon the technical knowledge and skill of the contractors to whom it had entrusted the job. As to the making of subsequent inspections, it is sufficient to point out that the glass had been in place for only about a year and a half before the occurrence of the accident, and plaintiffs’ expert witness himself testified that, assuming proper installation, there was “no necessity for intense inspection over a period of years.” Nor was there evidence that defendant did not make proper inspections.

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On the present state of the record it is unnecessary to consider any question bearing upon the legal liability of the additional defendants to plaintiffs.

Judgment affirmed.