Reargued May 26, 1970. Rehearing En Banc May 26, 1970.
Kalodner, Staley and Freedman, Circuit Judges. On Reargument: Hastie, Chief Judge, and Kalodner, Staley, Freedman, Seitz, Van Dusen, Aldisert, Adams and Gibbons, Circuit Judges. Staley, Circuit Judge (dissenting).
Donald Green, 16 years of age, was injured when his left hand was caught in the worm gear of a meat grinding machine in the meat department of a grocery store where he was employed. His father, William Green, instituted this action on the son's behalf and in his own right against Sanitary Scale Company, an Illinois corporation, claiming that Sanitary Scale's negligent design and manufacture of the machine caused the accident. Sanitary Scale in turn filed a third-party action against the operator of the grocery store, Max Berman, alleging that he was partly or wholly responsible for the accident because of his negligence in the removal of the machine guard. The jury found both Sanitary Scale and Berman negligent, and awarded damages of $45,000 to Donald Green and $4,000 to William Green. Judgment was accordingly entered in favor of the plaintiffs and against Sanitary Scale for $49,000, and in favor of Sanitary Scale and against Berman for contribution. From this judgment Sanitary Scale and Berman appeal.
On March 10, 1962, the meat department butcher cut a chunk of meat about the size of two baseballs and asked Green to grind it into hamburger. Green testified that he had ground meat about a dozen times before, and that his usual procedure was to place the meat in the funnel-shaped hopper until the meat was caught by the worm gear, about four inches below the top of the hopper. He would then withdraw his hand and use the aluminum stomper provided by Sanitary Scale for use with the machine.
He claimed that sometimes it was necessary in grinding the larger chunks to use his hand rather than the stomper because otherwise the worm gear would not catch the meat.
On this occasion, Green, following his normal procedure, forced the chunk into the hopper with his hand. When he felt the meat catch, he attempted to withdraw his hand but was unable to do so. He then sought to shut off the machine, but could not reach the switch which was located at the rear of the machine. By the time the butcher came to his aid and shut off the machine, he had sustained injuries which required the amputation of four fingers of his left hand.
On cross-examination Green admitted that there was nothing mysterious about the machine and that he was familiar with its construction; that he knew that his fingers would be caught if he inserted his hand too far into the machine; that he was uncertain how far he had voluntarily inserted his hand just prior to the injury, but that there was nothing on the meat itself with which his hand became entangled.*fn1
On redirect examination he stated that he was positive that at least at the time he inserted the chunk of meat his fingers were not far enough into the hopper to come into contact with the worm gear. He stated that when the meat went down, his hand went down with it, and when the meat started coming out of the grinder he was unable to remove his hand.
At the close of the testimony, Sanitary Scale requested the court to charge on the defense of assumption of risk and declared its desire to argue to the jury that Green, by his admissions, had voluntarily assumed a known risk in putting his hand into the machine. The court refused to so charge and later denied Sanitary Scale's motions for judgment n.o.v. and, alternatively, for a new trial. Green v. Sanitary Scale Company, 296 F. Supp. 625 (E.D.Pa.1969).
The district court gave two reasons for its refusal to charge on assumption of risk. One reason was that in Pennsylvania, whose law governs this diversity action, the defense is available only in a suit by an employee against his employer, citing Kulka v. Nemirovsky, 314 Pa. 134, 170 A. 261 (1934) and Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A.2d 123 (1957).*fn2 But the expressions to that effect in those two decisions do not accurately reflect the law of Pennsylvania. In Witcjak v. New Franklin Coal Mining Company, 173 F. Supp. 661 (E.D.Pa.1959), Judge Van Dusen closely analyzed the Kulka and Stark cases and concluded that their broad language was partly dicta, that they were unrepresentative of Pennsylvania law, and that the defense of assumption of risk is not limited in Pennsylvania to suits between employee and employer. More recently, the Seventh Circuit Court of Appeals, in interpreting Pennsylvania law in Tantalo v. Arvin Industries, Inc., 359 F.2d 638, 640 (7 Cir.1966), held that the defense of assumption of risk was applicable in other than an employer-employee case and supported its conclusion by reference to numerous modern Pennsylvania cases in which the defense was considered even though no employer-employee relationship was present. Finally, the Pennsylvania Supreme Court has recently considered the defense in a negligence action which did not involve an employer and his employee, Cummings v. Borough of Nazareth, 427 Pa. 14, 233 A.2d 874 (1967).*fn3 From all this it is apparent that the doctrine of assumption of risk, however unattractive it may be today, is in force in Pennsylvania.
The district court also refused to charge on assumption of risk on the ground that the evidence would not justify a finding by the jury that Green had voluntarily exposed himself to an obvious or known danger.*fn4 We believe this view of the evidence is unjustified. As already indicated, Green testified that he was familiar with the mechanism of the meat grinder, realized that his hand would be caught if he inserted it too far into the hopper, and was uncertain just how far he had reached into the hopper before he found himself unable to remove his hand. From such testimony the jury could reasonably have inferred that Green knew that a risk of danger existed in using his hand instead of the aluminum stomper to press meat down into the hopper, and that he voluntarily assumed this risk because, as he testified, it was more convenient to use his hand with large chunks of meat.
It is argued that a distinction should be drawn between the risk of danger in putting the hand directly in the worm gear and using the hand to push meat down into the hopper. On this view, it is suggested that the only risk of which Green had specific knowledge was the danger of putting his hand in the worm gear; that while he was uncertain how far into the hopper he had put his hand, he was positive he had not voluntarily put it into the worm gear; and that while he may have acted unreasonably in bringing his hand so close to the gear, this went to the question of contributory negligence, of which the jury absolved him, and not to the question of assumption of risk in its primary sense. We think this argument too finespun to apply to the everyday practical problems of negligence law. It is tantamount to saying that a party assumes the risk only where there is a virtual certainty of injury and not merely a "risk" or chance, however obvious, that he may be injured by his voluntary and knowing behavior. In any case, in view of Green's testimony that he clearly understood the risk of putting his hand into the gear, it was for the jury to decide whether or not he must also have understood the obvious danger of placing his fingers too close to the gear, and also how far, in fact, he voluntarily put his fingers into the grinder before attempting to withdraw them.*fn5 We would usurp the traditionally broad discretion of juries ...