APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 74-20).
Seitz, Chief Judge, Van Dusen and Weis, Circuit Judges.
This is an appeal from an order of the district court granting the motion of the defendant Minster Machine Company, Inc. (defendant) for a directed verdict at the close of plaintiffs' case.
Plaintiffs are husband and wife. They brought this diversity action to recover for personal injuries suffered by plaintiff wife while employed by the third party defendant, Westinghouse Airbrake Division of the Westinghouse Electric Company (Westinghouse). For convenience, the injured wife will be referred to as plaintiff.
Plaintiff suffered personal injuries while operating a power press machine used to trim excess rubber from various molded rubber parts. The machine was manufactured by defendant and sold to Westinghouse. As shown by the documentary evidence and the testimony of Westinghouse's manager of manufacturing services, the original written proposal for the sale of the machine by defendant to Westinghouse called for a standard control system utilizing two constant-dwell type buttons located in the front of the upper part of the machine. This two button control system was also the machine's principal safety feature in that it required the operator to utilize both hands while operating the press. As a result, the operator's hands were shielded from contact with the descending ram. The two button switch system could be utilized either for continuous run or for manual operation simply by turning a key to the indicated setting on the side of the machine. The setting dial on the side of the machine also included positions for foot switch operation, either continuous run or manual. A foot operated switch, however, was an extra or optional feature.
Westinghouse preferred the foot switch because under its plan for using the machine in manual operation, the operator's hands would be engaged in handling the rubber parts. Following conversations with Westinghouse officials, Minster submitted a supplemental proposal quoting a price of $60.00 for the optional foot switch.
The foot switch acted on the principle of an electric light switch - simply depressing it caused the ram to descend. It was unlike the two button control in that when it was used there was nothing on the machine, as sold, to prevent the hands of the operator from entering the point of operation. As shown by Minster's service manual, the machine could be utilized with both the two buttons and the foot switch installed, but only one activating device could be used at one time. As noted, this depended on the setting of the control key in the desired position.
Westinghouse issued a purchase order for the machine described in the proposal of Minster and another purchase order for the foot switch in the supplemental proposal. It was undisputed that when the machine arrived, Westinghouse personnel removed the two button activating system and installed the foot control mechanism in its place. Since the removal of the hand control system eliminated the principal safety feature on the machine as sold, Westinghouse's personnel also designed and installed an adjustable plastic guard in order to obstruct entry into the area in which the ram descended. However, this new device, which was on the machine at the time of the accident, only partially blocked entry into the point of operation.
Westinghouse, according to the testimony of its officer, had no specialized expertise in safety design and customarily relied heavily on the manufacturer for guidance in this area. In the instant case, however, Minster failed to provide any proposals concerning an appropriate safety guard for operation of the machine by foot switch.
Six years after the sale to Westinghouse by defendant, while plaintiff was adjusting a part by hand within the point of operation, the ram was accidentally activated by the foot pedal. It fell and injured plaintiff. Plaintiff then brought this action against defendant alleging ordinary negligence and strict liability in tort under § 402A of the Restatement of Torts (Second). Westinghouse was made a third party defendant.
Following the completion of plaintiff's case, the district court granted a directed verdict on the ground that there was no proof that the press was in a defective condition when delivered and that the negligence of Westinghouse in modifying the press was the proximate cause of the employee's accident and attendant injury. This appeal followed.
The parties both agree that Pennsylvania law controls. Pennsylvania has adopted § 402A of the Restatement of Torts (Second), Webb v. Zern, 422 Pa. 424, 220 A.2d ...