Bisson v. John B. Kelly, Inc. , 314 Pa. 99 ( 1933 )

I do not agree with the majority that John B. Kelly, Incorporated, was in any way responsible for this accident. Plaintiff was injured by being hit on the head by a piece of tile while working on a building then under construction. He was employed by a subcontractor doing ornamental bronze work. Defendant was a subcontractor doing brick- and hollow tile-work. Plaintiff was injured February 17th. His evidence showed that all of the defendant's work had been finished on February 13th, four days before the accident, and that defendant's men had left the floor at that time.

The wall which the defendant built was according to plans and specifications, and his work was completed. The wall was to be further tied with other work of the general contractor, but that was not defendant's business. The brick or tile which is supposed to have fallen on plaintiff was set in cement not later than February 13th, and so remained until the 17th. It is in plaintiff's evidence and is a matter of universal knowledge that the cement would have so hardened that it would have been necessary for some hard blow to dislodge the tile. It appears in evidence that it was impossible for it to have fallen of itself or from ordinary vibrations. There was no evidence whatever as to the cause of the accident.

If the wall was improperly constructed, it was done so according to plans and specifications. This was no fault of defendant. The verdict was a pure guess: Laing v. Remington Arms Co., 264 Pa. 130. The defendant having completed his work was in no way responsible for what followed. If the wall needed a guard or brace, it was the duty of the general contractor on the whole work to furnish it.

I would enter judgment for the John B. Kelly, Incorporated Company.

Justices SCHAFFER and LINN concurred in this dissent.