Opinion
November 30, 1943.
January 3, 1944.
Negligence — Supplier of chattels — Liability to users or person in vicinity — Knowledge of defect — Failure to give notice of dangerous condition — Restatement, Torts.
1. One who supplies a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by the person for whose use it is supplied, if the supplier knows that the chattel is dangerous for the use for which it was supplied, and has no reason to believe that those for whose use the chattel was supplied will realize its dangerous condition, and fails to exercise reasonable care to inform them of its dangerous condition. [408-9]
2. Restatements, Torts, sections 388, 408, cited. [408]
Argued November 30, 1943.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON and STEARNE, JJ.
Appeal, No. 191, Jan. T., 1943, from order of C. P. No. 4, Phila. Co., March T., 1943, No. 2597, in case of Anna Lambert, Admrx., v. Richards-Kelly Construction Company. Order affirmed.
Trespass for wrongful death. Before SLOANE, J.
Verdict for defendant. Motion by plaintiff for a new trial granted. Defendant appealed.
Henry Thomas Dolan, with him Robert C. Duffy, for appellant.
Edward I. Cutler, for appellee.
Plaintiff sues to recover for the death of her husband. The jury found for defendant but the court ordered a new trial. Defendant now complains (1) of that order; (2) of the refusal of its motion for binding instructions.
1. We find nothing to indicate abuse of discretion in granting the new trial.
2. Defendant, who frequently let equipment, bailed a crane to Raymond Concrete Pile Company, who employed plaintiff's husband, agreeing to maintain the crane, and knowing it was to be for immediate use by the bailee's employes. See Restatement, Torts, sections 388, 408. The crane had a cab from which extended a boom 45 feet long over which, inter alia, a boom hoist cable was operated by a man in the cab for the purpose of lifting heavy weights. There is evidence from which the jury might have found that the boom hoist cable was only 411 feet long when, to be reasonably safe, it should have been considerably longer and that, being too short, the weight of the boom pulled the cable from the drum on which it was inadequately wrapped and permitted the boom to fall on plaintiff's husband. The evidence would also have supported a finding that the defect was known to the defendant and that the bailee was not warned; that it was one which would not ordinarily be observed by the workman, who was a rigger and whose work was not in the cab which contained the drum.
The disputes of fact arising out of these circumstances were necessarily for the jury and not to be resolved by affirming defendant's point or by subsequently entering judgment n. o. v.
Order affirmed.