Before JONES and McLAUGHLIN, Circuit Judges and KALODNER, District Judge.
McLAUGHLIN, Circuit Judge.
This is an appeal from a plaintiff's judgment, the result of a personal injury negligence action. The accident occurred in Philadelphia, with the suit started and tried in the Eastern District of Pennsylvania. The case is in the United States Courts because of diversity of citizenship. The law applicable is that of Pennsylvania. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487; Ruhlin v. New York Life Insurance Co., 304 U.S. 202, 58 S. Ct. 860, 82 L. Ed. 1290.
The plaintiff was a man about thirty-nine years old at the time of the accident involved here. He was employed by a lumber company, in loading and unloading its trucks. He had been with the same concern about twenty-one years. On June 10, 1940, he brought a load of planks to the defendant's mill in the City of Philadelphia, for the purpose of having them planed, tongued and grooved. He left the planks at the rear of the planer, made another stop in the yard to get some different type of lumber, and then brought his truck around to the front of the planer for the loading of the dressed lumber upon it.
Plaintiff backed his truck against the loading platform, which really consisted of a conveyor belt on which the lumber continued after leaving the planer. The back of the truck was close to the front of the conveyor belt. Plaintiff, on his own behalf, testified that the only thing he was told by defendant's employees was to go around "and back up to the planer." He said no one offered to help him. As the lumber came off the conveyor, plaintiff arranged it on his truck. He had all the lumber aboard except three or four pieces before the accident happened. In his testimony he described the accident as follows:
"A. One [piece of lumber] came out and I picked it up, started to roll it to the west side of the truck. By the time I came there another one hooked on and it buckled and hit me and knocked me to the ground.
"Q. Where were you when this piece came out? In what position were you? A. I was just turning around to get another one when another one hit me.
"The Court: And knocked you to the ground from the truck?
"The Witness: From the truck.
"The Court: From the truck?
He described the buckling as being caused by the plank then coming off the conveyor striking the end of a plank already on the truck. Earlier in Reeves' testimony, asked to describe what he saw defendant's employees do in the operation of the planer, he replied, "I just saw them feed the machine, that is right, feeding too fast so I couldn't get it away." He also said regarding prior visits to defendant's place of business, "On other occasions, whenever I went there, I always picked the stuff off the ground. It was all done waiting for me."
The foreman of the defendant was a witness on the latter's behalf. He said that he told the plaintiff to go around in the back of the mill and get the limber. He testified that there is a handle on the planer which, when pulled toward the operator, stops the movement of the planks immediately. The person who fed the lumber into the conveyor was a defense witness. He said that from his position if he leaned toward his left side he could see the truck. With reference to the necessity of him observing plaintiff, there is the following testimony by him:
"Q. You say when you leaned over to your left side - did you look out there from time to ...