concurring:
I agree with the majority that appellants failed to make a prima facie showing that appellee’s acts or omissions con*160tributed to Lewis Webb’s death, and that they were therefore not entitled to contribution from appellee under the Uniform Contribution Among Tortfeasors Act.* However, the majority’s holding does not dispose of Stone and Webster Engineering Corporation’s contractual claim against appellee. Stone argued at trial and on appeal that under the indemnity provision contained in its contract with appellee, appellee was obliged to indemnify it for any payments it made to Webb’s administratrix on account of its own negligence, or the negligence of appellee as general contractor or of any subcontractor. Therefore, in order to determine whether the compulsory nonsuit was properly entered against Stone as regards this claim, we must consider whether the evidence was sufficient to. support a- finding that the negligence either of Stone, the general contractor, or any subcontractor contributed to Webb’s death.
The facts adduced at trial on this issue are as follows. Stone hired appellee as the general contractor on a construction project. Appellee ordered an “operator’s cab” from the John Harrison Company. The purchase order form for the cab specified that Harrison was to install “Vi" thick plywood over all openings to the cab for protection during shipment against weather and vandalism.” Harrison, however, used Vis" pressboard instead. Eventually, the cab was erected on a crane at the construction site, and Lewis Webb, an electrician who was working in the cab, fell through the pressboard covering one of the openings in the cab. Webb’s co-workers testified that the pressboard did not present a hidden peril to the workers, and that all the workers, including Webb, knew that it would not withstand much pressure. Stone’s Project Safety Engineer testified that in his belief Stone had complied with all safety regulations. Moreover, even though the Project Safety Engineer had been in the cab only days before the accident, and at that time had failed to note the substitution of pressboard for plywood, there was no testimony indicating that he should have known of the substitution. In deed, there was no testimony *161that the installation of plywood instead of pressboard would have prevented the accident, or that there existed a duty on anyone’s part to close the openings in the cab securely for the safety of workers.
I do not believe that on these facts the jury could have found that Webb’s death was caused by the negligence of anyone connected with the construction project. The substitution of pressboard by Harrison may have been a breach of its contract with appellee; but Stone failed to prove that this breach constituted negligence, and that this negligence caused Webb’s death. In addition, Stone did not show that either it or appellee breached its duty as regards worker safety. Compulsory nonsuit was therefore proper on Stone’s contractual indemnity claim.
Because I believe that compulsory nonsuit was proper, I have not considered whether appellants were estopped under Barson’s and Overbrook, Inc. v. Arce Sales Corp., 227 Pa.Super. 309, 324 A.2d 467 (1974).
Act of July 19, 1951, P.L. 1130, § 2, 12 P.S. § 2083.