Seitz, Chief Judge, and Van Dusen and Adams, Circuit Judges.
This diversity action, under the wrongful death and survivorship statutes, presents several perplexing questions of Pennsylvania law regarding liability and damages.
Frank Magill was employed as a journeyman painter by Murphy, Inc. (Murphy) in January, 1967, while Murphy, pursuant to contract, was engaged in painting the machines located at the Westinghouse Plant in Lester, Pennsylvania. Mr. Magill was killed on the night of January 27, 1967 when he was cleaning a lathe in preparation for painting it, and someone accidentally engaged the clutch causing the chuck of the lathe to rotate, crushing his skull.*fn1
The administrator of Mr. Magill's estate commenced the present action against Westinghouse in June, 1967, and Westinghouse brought Murphy in as a third-party defendant on a theory of indemnity based on the contract between Murphy and Westinghouse.*fn2 After the trial, in response to five special interrogatories, the jury found that Westinghouse was negligent, that such negligence was a proximate cause of the accident, that Mr. Magill was not contributorily negligent, that the damages were $29,000 under the Wrongful Death Act and $171,270 under the Survival Act, and that Murphy was "not guilty of negligence contributing, in any degree, to the happening of the accident." Westinghouse's motions for judgments N.O.V. or in the alternative for new trials in both actions were denied by the district court, 327 F. Supp. 1097. Westinghouse appeals from the judgments entered against it in both the main case and its third-party action against Murphy for indemnity.
I. SHOULD THE DISTRICT COURT HAVE GRANTED JUDGMENT N.O.V. IN MAGILL V. WESTINGHOUSE?
The central issue in the administrator's case against Westinghouse concerned the duty to make sure that the lathe had no power running to it while the Murphy employees were cleaning and painting it. Westinghouse contends that its duty as a possessor of land to a business invitee was satisfied because the uncontradicted testimony indicated that it was reasonable to believe that the dangerous condition would be obvious to, and discovered by an invitee. Mike v. Lebanon Miridites League, 421 Pa. 217, 218 A.2d 814 (1966). Westinghouse further urges that its duty to warn a business invitee of a known dangerous condition went no further than cautioning the contractor, and that it was not required to warn all of the contractor's employees individually.
Although in other factual contexts these legal arguments might be successful for Westinghouse, here they miss the mark. It was uncontradicted that the Murphy employees, including Mr. Magill, were unfamiliar with the power sources for any of the machinery contained in Building H. Moreover, the power switch on the lathe in question was a spring-loaded button, and a visual inspection of it would not warn anyone whether or not the power was activated in the lathe. Because a question of fact was presented in that the jury could have found that the danger of the lathe's being on was not obvious, and that Westinghouse had therefore breached its duty as a possessor of land, the district court properly denied Westinghouse's motion for judgment N.O.V. in this regard. Additionally, the evidence was not at all clear that Westinghouse ever even warned the contractor that the machines should be turned off. In such circumstances the issues whether any warnings were given and to whom were for the jury and therefore judgment N.O.V. was not appropriate.
II. DID CERTAIN TRIAL RULINGS REQUIRE THAT WESTINGHOUSE BE GRANTED A NEW TRIAL ON LIABILITY IN MAGILL V. WESTINGHOUSE?
A number of legal questions arose at trial, and Westinghouse urges that it be granted a new trial on the issue of liability based on alleged errors committed by the district court.
To establish a breach of a duty by Westinghouse, the administrator called two safety experts to testify as to what safe practices would be with regard to the fact situation presented in this case. Westinghouse vigorously asserts that the function of the jury was usurped when the trial judge permitted Mr. Landry, the second of the experts, to answer a question dealing with the usual and customary safeguards that " should have been applied in this type of situation * * *," because the expert gave an opinion on the ultimate question in the case.*fn3
We note first that although Westinghouse objected to the question, it never set forth the ground now urged for reversal, Fed.R.Civ.P. 46, and we need not consider such an argument on appeal. In addition, in view of the overwhelming evidence that no warnings were given by Westinghouse and that no precautions were taken to insure that the lathe was turned off, it is apparent that the ruling of the district court was not "inconsistent with substantial justice." Fed.R.Civ.P. 61. Furthermore, the jury was properly apprised of the use it could make of the expert testimony in determining the issue of liability.
Westinghouse next asserts that it was reversible error for the district court to refuse to charge the jury that a possessor of land may insulate itself from liability by warning the contractor and need not warn the contractor's employees. To support its position, Westinghouse relies on Crane v. I.T.E. Circuit Breaker Co., 443 Pa. 442, 278 A.2d 362 (1971). There, Crane was the employee of an independent contractor who had been hired to remove certain pieces of heavy machinery from I.T.E.'s premises. Crane was injured when a large skid fell on him during the moving operation. The Supreme Court of Pennsylvania reversed a jury verdict for Crane and ordered the entry of judgment N.O.V. because the possessor of land -- I.T.E. -- did not retain control over the premises on which the contract work was being done and in such a case, the possessor need warn only the contractor, and not the contractor's employees. Crane, however, is distinguishable from this case, because here no evidence was introduced to indicate that Westinghouse did not have control over the premises. That Westinghouse did not in fact retain control may be inferred from the evidence that the Murphy employees did not know how to cut off the power to the machines and that on one occasion, ...