Before BIGGS, MARIS and GOODRICH, Circuit Judges.
The plaintiff, Dorothy King Mannsz, a citizen of Pennsylvania, the widow of Donald King, brought suit in the Court of Common Pleas of Allegheny County, Pennsylvania, against Macwhyte Company (Macwhyte), an Illinois corporation, and against Bradford Supply Company (Bradford), a Pennsylvania corporation. Donald King purchased from Bradford at Warren, Pennsylvania, a wire rope, described hereinafter, used by him to support a scaffold on which he and Myron R. Ellis worked. The rope broke, causing one end of the scaffold to fall to the ground. King was killed; Ellis was injured. Mrs. Mannsz' suit was removed to the court below pursuant to Section 28 of the Judicial Code, 28 U.S.C.A. § 71. The court below, ruling that Mrs. Mannsz' cause of action against Macwhyte was separate and distinct from her cause of action against Bradford, remanded her action against Bradford to the Court of Common Pleas of Allegheny County. Ellis sued Bradford and Macwhyte in the court below in a single suit. It appears that a motion, made by Bradford to dismiss Ellis's action as to it because of lack of diversity, was granted.*fn1
Before answer Macwhyte filed a motion to dismiss the Mannsz suit on the ground that the complaint did not set forth a cause of action. The motion was denied*fn2 by the court below on the authority of Sierocinski v. E. I. DuPont De Nemours & Co., 3 Cir., 118 F.2d 531. Both cases were then brought on for trial. It was stipulated that the Ellis proceeding should be treated as if a like motion had been made by Macwhyte and had been disposed of as had Macwhyte's motion in the Mannsz case. Both cases were then tried together.*fn3 At the close of the plaintiffs' evidence the court below granted motions made by Macwhyte for directed verdicts. The plaintiffs moved for new trials. The motion was denied. See D.C., 60 F.Supp. 76.Both plaintiffs have appealed.
The complaints in both cases assert breach of warranty and negligence by Macwhyte, charging it with improperly manufacturing the rope, with not having inspected it properly, and with having negligently represented it as fit for the purpose for which it was used. In its answer Macwhyte denied that the rope was not properly manufactured or adequately inspected and asserted that it was not used by King for the purpose for which it was manufactured.
The evidence shows the following, taking those inferences therefrom most favorable to the plaintiffs. King used the wire rope to suspend a scaffold upon which he and Ellis were working. Specifically, the wire rope, 16 feet in length and cut into two pieces of about equal length, was employed by King to hang from a channel iron blocks, pulleys and hooks which, in turn supported other ropes connected to the scaffold.
The evidence showed that the two pieces of wire rope were clamped into closed loops and from each of these loops was hung a block connected by tackle with another block, from which in turn the scaffold was suspended. The wire rope in turn was fastened around a channel iron at the top of the building from which the whole scaffold and its accoutrements were hung. The channel iron had an edge which, though not sharp in any literal sense, none the less might cut by abrasion a wire rope of the sort employed by King.
There was uncontradicted evidence that the wire rope had been "moved" two or three times; that is to say, had been fastened or unfastened several times as the scaffold had been moved from building to building. There was also testimony that the scaffold might have swung a little as the men moved upon it. The left hand section of the wire rope broke. If it were proven that the break occurred at some point around the channel iron, the plaintiffs probably could not recover for it might then be assumed that the rope had been cut by abrasion. The evidence, however, shows that the break occurred "* * * in the area below the channel iron".*fn4 The word "area" was used by the witness to designate that part of the wire rope which lay beneath the channel iron. The parting of its fabrics apparently did not take place because of abrasion as warned against in the manual heretofore referred to.
The scaffold and its accoutrements*fn5 weighed not more than 300 pounds. King weighed 150 pounds and Ellis weighed 170 pounds. The total burden upon the wire rope did not exceed 650 pounds. Actually the suspended weight was one-half of this since the scaffold was hung from two places, halving the weight.
The plaintiffs introduced into evidence a manual published by Macwhyte. At the "Macwhyte Wire Rope, 6X42, "Macwhyte Wire Rope, 6x42, Tiller or Hand Rope". There follows a printed similacrum of the rope and a cross-section of it. Then appears, inter alia, the following:
"This is the most flexible wire rope made but because of its fine wires, it should be subjected to very little abrasive wear. It is made of 6 strands of 42 wires each,*fn6 a total of 252 wires. Each strand is a complete 6X7 rope fabricated around a central hemp cord making 7 hemp cords in all.
"It is used as a hand rope in connection with the operating device of passenger and freight elevators, as steering cable on small boats and steamers, and for industrial and mining devices.
"Prices: List Price for Bright Ropes are shown below. Any rope smaller than that listed takes the price of the smallest rope listed. Any other omitted sizes take the next largest price shown. For Galvanized Ropes add 25% to these lists and apply the Bright Rope discount."
Then follow the words and figures: "Macwhyte 6X42 Tiller Rope" and a chart in box form. The first column headed "Diameter in Inches" gives various widths of rope beginning at 3/16ths and running to 7/8ths including 5/16ths. The next column headed "List Price Per Foot", is divided into 3 sub-columns headed respectively, "Iron", "Cast Steel" and "Plow Steel". Under the heading "Iron" and parallel to the figures "5/16" hereinbefore referred to appears ".08". The third column is headed "Approx. Weight Per Ft. in Lbs." and in this column parallel to the figures "5/16" and ".08" appears ".11". The last column is headed "Approx. Breaking Strength in Tons of 2000 lbs." This column has three sub-headings, viz., "Iron", "Cast Steel" and "Plow Steel" and under the column headed "Iron" and parallel to the figures heretofore specifically designated, "5/16", ".08" and ".11" appear the figures ".977".Translating the foregoing into ...