Before KALODNER, STALEY and HASTIE, Circuit Judges.
Sixto Quinones, a laborer, employed by McCabe Brothers, contractors, ("McCabe") was killed when an unshored trench in which he was working caved in. The trench was being excavated by McCabe as part of a sewer construction project pursuant to a written contract awarded it by the Township of Upper Moreland, Pennsylvania ("Township").
Joaquina Quinones, Administratrix of Sixto's estate, ("plaintiff") brought suit, charging negligence, against Township and Miles Potter, township engineer, under the Survival and Wrongful Death statutes of Pennsylvania. Township and Potter impleaded McCabe as third-party defendants on theories of common law and contractual indemnity.
Jurisdiction is based on diversity. Pennsylvania law governs.
The jury returned a verdict of $35,000 in favor of plaintiff against Township and Potter and found in favor of McCabe against Township and Potter in the third-party action. The trial judge denied Township's motion for judgment n.o.v. and/or a new trial with respect to the verdict in favor of plaintiff and further denied Township's motion for a new trial with respect to the verdict in favor of McCabe in the third-party action. The trial judge, however, granted Township's motion for judgment n.o.v. against McCabe to the extent of McCabe's Pennsylvania workmen's compensation liability on the ground that it was concurrently negligent with Township in failing to construct shoring in the collapsed trench. Finally, the trial judge granted Potter's motion for judgment n.o.v. with respect to the verdict against him in favor of plaintiff, on the ground that the testimony did not sustain it. The opinion of the trial judge is reported at D.C.E.D.Pa.1960, 187 F.Supp. 260.
In finding against Township with respect to plaintiff's verdict the trial judge held that there was sufficient evidence to sustain the jury's finding that Township "had retained sufficient control [with respect to McCabe's performance of the contract] to make it liable for the absence of shoring." In doing so he pointed to the fact that the failure to provide shoring was in violation of a Pennsylvania statute, 43 P.S. § 25-2(f) and regulations of the Pennsylvania Department of Labor and Industry.*fn1
The trial judge rejected Township's contention that under Pennsylvania law it was engaged in a governmental function in the construction of the sewer and was thus endowed with immunity from suit and held that Township was acting in a proprietary function with attendant liability.
In Appeal No. 13,431 plaintiff seeks reversal of the judgment of n. o. v. entered by the trial judge on the jury's verdict in its favor against Potter, the township engineer, asserting that the evidence sustained the verdict.
In Appeal No. 13,432 Township challenges the denial below (1) of its motion for judgment n.o.v. against the plaintiff, and (2) of its motion for judgment n.o.v. for full indemnity against McCabe should we find its first contention without merit.
The Township premises its appeal on its first point on these contentions: (1) the evidence was insufficient to establish any control on its part in the performance of McCabe's contract; (2) plaintiff's decedent was guilty of contributory negligence as a matter of law in working in an unshored trench; (3) the construction of a sewer is in the exercise of a governmental function with attendant governmental immunity, and (4) Township's negligence, if any, was secondary, and McCabe's negligence "primary" and accordingly Township, under Pennsylvania law, is entitled to full indemmity; the trial judge Pennsylvania law, is entitled to full indemnity; the trial judge erred in finding the negligence in failing to shore the trench "concurrent" on the part of Township and McCabe.
It must immediately be said, with respect to Township's point that plaintiff's decedent was guilty of contributory negligence, that it was not raised below either during the course of the trial or in the motions for a new trial or judgment n.o.v. against plaintiff, and for that reason alone cannot, and will not, now be entertained. Halprin v. Mora, 3 Cir., 1956, 231 F.2d 197; Penn v. Glenn, 6 Cir., 1959, 265 F.2d 911. Moreover, it is well-settled in Pennsylvania that "Contributory negligence can only be declared judicially where it is so clear that there is no room for fair and reasonable persons to disagree", Bauer v. Sacks, 1947, 355 Pa. 488, 492, 50 A.2d 351, 354, and on review of the record here "No one could read the * * * printed record in this case and fairly assert that there is no room for fair and sensible men to conclude from the evidence that the plaintiff [decedent] was free of contributory negligence." Cooper v. Heintz Mfg. Co., 1956, 385 Pa. 296, 306, 122 A.2d 699, 704.
Before proceeding to consideration of the other points presented by Township's appeal and that of the plaintiff in Appeal No. 13,431, the facts as adduced by ...