Biggs, Forman and Freedman, Circuit Judges.
Francis C. O'Neill, a pipe fitter, was seriously injured while working at the United States Post Office Building at 30th and Market Streets, Philadelphia. He was employed by Ambrose-Augusterfer Corporation, an air conditioning subcontractor of Wark & Co., which was one of the prime contractors in the renovation of the building. He received workmen's compensation benefits from his employer's insurance carrier, Aetna Casualty Company.
O'Neill, joined by Aetna, brought the present action under the Federal Tort Claims Act*fn1 against the United States, charging that its negligence caused the accident. The United States denied negligence on its part, alleged that O'Neill was contributorily negligent and filed a third party complaint against his employer, Ambrose-Augusterfer Corporation, alleging that it was negligent and therefore liable to the United States either by way of contribution or indemnity.
The District Judge sitting without a jury, as required by 28 U.S.C. § 2402, made findings of fact and conclusions of law to the effect that under Pennsylvania law, which governs this case,*fn2 there was no negligence on the part of the United States, that plaintiff (O'Neill) was guilty of contributory negligence and his employer, Ambrose-Augusterfer, was negligent. Judgment accordingly was entered in favor of the United States on the plaintiffs' claim; and since the United States was absolved of responsibility, judgment was entered in favor of the third party defendant despite the finding of its negligence. In an addendum the District Judge made supplemental findings assessing plaintiff's damages at $98,345.17, to be effective in the event it should be held on appeal that plaintiff is entitled to recover damages from the United States. 276 F. Supp. 724 (E.D.Pa.1967).
On this appeal plaintiff carries the heavy burden of demonstrating that the District Judge's findings of fact that the United States was not negligent and that plaintiff was contributorily negligent are "clearly erroneous" under Federal Rule of Civil Procedure 52(a). If either of the two foundations for the judgment stands, the appeal must fail, for in Pennsylvania contributory negligence, no matter how slight, is a complete bar to recovery.*fn3 Consideration of these questions necessarily leads us to the factual circumstances disclosed by the record.
On September 28, 1962, O'Neill was directed by his foreman, Tobin, to drill a hole through the third floor of the Post Office Building, so that water pipes required for the new air conditioning equipment could be run to the second floor. The floor was made of concrete covered with wood. The hole was located alongside the wall of the building. On the other side of the hole, about 18 inches away from the wall and parallel to it, was a conveyor. To reach the hole O'Neill had to step over the conveyor, which was 18 inches high.
The conveyor, used for sorting mail, consisted essentially of metal rollers which were rotated by friction with a moving rubber belt on which they rested. In most sections of the conveyor the rollers could easily be lifted by hand from the belt on which they rested by the force of gravity. They could be moved vertically but not horizontally because they fitted into slots in the side of the conveyor. In some sections of the conveyor, however, where switching equipment was necessary in order to route mail onto connecting lines, the rollers were restrained from any vertical movement. These rollers were fastened in the slots and could not readily be lifted by hand from the belt. The difference in the fitting of the two types of rollers in the slots was not readily apparent to ordinary observation.
At the time of the accident O'Neill had removed the wood flooring and had drilled about halfway through the concrete floor with an electric drill when it struck something and "kicked". He was thrown off balance and as he extended his left hand to seek support it was caught between the roller and the belt of the conveyor. Unfortunately, the roller which pinned his hand was vertically restrained to accommodate switching equipment. Because the roller would not lift easily it took some time to release his hand and he suffered serious, permanent injury.
Liability of the United ...