Ganey, Smith and Freedman, Circuit Judges.
This matter concerns civil action No. 63,380 in which Wilma A. Moushey, Administratrix of the Estate of Charles T. Heiser, deceased, brought suit against the United States Steel Corporation as defendant who, in turn, brought on the record Mosites Construction Company as a third-party defendant, and civil action No. 64-275 wherein Wilma A. Moushey, Administratrix of the Estate of Charles T. Heiser, deceased, brought suit against S. T. Mosites and Anthony Sforza, defendants.
The cases were consolidated for trial and this appeal is taken from the judgments entered in favor of the defendants upon a verdict of the jury answering special interrogatories. The trial judge dismissed the action against Sforza after the plaintiff had rested her case and no question is raised in this appeal challenging such dismissal. This appeal is taken by the plaintiff from judgments entered in favor of the defendants upon the verdict of the jury, as indicated.
Briefly, the following facts concern the cause of action: Charles T. Heiser met his death on April 2, 1963, when he fell from the roof of the Electric Furnace Building owned by the United States Steel Corporation at Duquesne, Pennsylvania, where he was an employee of Mosites Construction Co., the third-party defendant, of which Steven Mosites was president, and who, as indicated above, was named as a defendant in a separate suit. The Mosites Construction Company was engaged in painting the roof over certain electrical furnaces under a contract entered into between it and the defendant, United States Steel Corporation. Pertinent sections to the issues here raised are listed in the footnote below.*fn1 Heiser was working on an open roof approximately 80 feet above the ground which had a slope of more than 20 degrees, slightly more than 3 inches per horizontal foot. He was engaged in helping to spray paint on the roof as he had excellent qualifications for working on roofs and he liked climbing and being able to stay in high places. He was in good health with all of his faculties, physical and mental, being normal on the day of the accident, April 2, 1963. The time of the accident was about one o'clock in the afternoon. Heiser, the decedent, one Burrell and Anthony Sforza, the foreman, or supervisor, in charge of the men, had been engaged in pulling up material from the ground and had their hoses connected to a pump attached to a drum, which was to supply the necessary material for spraying. Sforza stationed Heiser by the drum which contained the material that would be pumped out to be sprayed on the roof. Sforza put his safety belt on him and started to spray. The safety belt which he put around himself had a rope leading from it, 6 to 8 feet long, and about 1/2 inch thick, which was connected to a guideline which ran up and was fastened to certain ventilators on the edge of the roof. For one reason or another, the material did not come out of the spray gun fast enough and Sforza called for the decedent, Heiser, to make certain adjustments on the pump, which he attempted to do. Sforza again tried the spray gun and the same trouble persisted so he called the decedent back again and told him to bring his safety belt with him. Sforza told him to stand by, leaving his safety belt beside him, handed him the spray gun and went over to see if he could make the proper adjustment and, as Sforza went over to the other side of the roof, he turned around and yelled to Heiser to watch the paint and watch himself and stay put, and to keep the trigger of the spray gun up to see if the material would come out better, which was mastic paint and slippery. Sforza adjusted the gauges on the pump and when he came back over the roof he looked down and saw that the decedent was no longer there and he went below and saw the decedent lying beside the railroad track. When Heiser came over to Sforza, Sforza placed his safety belt right beside where the decedent was sitting. There was some evidence that when Sforza left, the decedent was trying to put on his safety belt. Heiser was taken to the hospital and there pronounced dead by the doctors who examined him.
The safety belts were the type used by window cleaners with a buckle in the front, with over 3 inch leather straps, and at each side of the belt there were steel rings and on one of these rings there was six feet of rope at the end of which was a clip which was fastened on to the safety line stretching from the top of the roof.
On March 22, 1963, Steven Mosites, president of the Mosites Construction Company, was present in the offices of the United States Steel Corporation with certain members of the Corporation, when a booklet was given to Mosites covering the contractor's safety responsibilities in connection with general employment in the United States Steel Corporation. At that meeting, certain safety factors were discussed, including the placing of signs on the ground to indicate that there was work being done overhead; that the men employed by Mosites were to use extreme caution on the roof and were to walk only on purlins and structural steel, and the request was made that the men in the employ of Mosites Construction Company use safety belts during the spraying as a precaution for their safety. The defendant, United States Steel Corporation, employed two inspectors, one of whom, Hlad, the inspector in charge on the second day of work, which was the day the decedent met his death, warned the two men on the roof, one of which was the decedent, Heiser, that they should wear their belts and take care of themselves.
The liability asserted against the defendant steel company was that the company had directed the contractor's employees in a particular manner, that of using safety precautions, by way of requiring that safety belts be used and that the inspector, Hlad, had insisted that while the men were on the roof they should wear the belts and take care of themselves, which, it is contended, was in reality the exercise of control of the operation.
In support of this contention, the plaintiff called one Anthony Rainaldi as an expert on safety regulations pertaining to painting of roofs in industrial establishments and he testified that the use of safety belts alone was not the usual and customary manner in which work of this type should be done for the reason that if you wanted to get to a point beyond the perimeter of the line, it would have to be removed as the line would not be long enough to permit one to get there and it would then have to be changed to another position, since, from time to time, men could not work freely from the belt. That the measures commonly used in the painting of a roof, in addition to the use of a safety belt, was the placing of a heavy line around the extreme perimeter of the building or of the roof to keep anyone working on the roof from falling, and another suggestion would be a catch-all, by way of a swing scaffold, attached to the building but used at the edge of the roof so that if an object with which the men were working would fall, or if the man himself would fall, it would act as a catchall and avoid the fall. He also suggested the use of catwalks. He further testified that these additional procedures would apply to the very kind of roof here in issue. In other words, he stated the methods he described were of common usage in the industry and that the use of safety belts alone was not enough. Rainaldi summed up his position: "I am not criticizing the belt or the use of the belt. I say it's wonderful. But the fact that that belt has to be taken off from time to time by the men working, to move -- he may want to get over here and that line will not permit him to get there, so it's just customary to take and unhook it, and you are on your own." It is for this reason that he said additional standards were to be required.
Steven Mosites testified on behalf of the Mosites Construction Company, third-party defendant, and he was equally emphatic in stating that the use of safety belts, as here, was the customary and usual practice in this type of work. Thus, the issue was drawn for the jury.
In determining liability, the court prepared forms for the use of the jury by stating 3 questions for their determination:
"1. Was there any negligence on the part of Steven Mosites which caused the death of Charles Heiser on April 2, 1963?"
"2. Was there any negligence on the part of Mosites Construction Company which caused the death of ...