Before BIGGS, Chief Judge, and KALODNER and STALEY, Circuit Judges.
The instant suit arises out of a collision of a bread delivery truck, belonging to and operated by the original defendant, Jamestown Baking Co., Inc., with a steel cable stretched by the third-party defendant, C. F. Burns, across Curry Avenue in the Borough of St. Marys, Elk County, Pennsylvania. The cable extended from a steel beam which the plaintiff's deceased husband, George McKee, Burns' foreman, was endeavoring to have dragged across the street for use in a new building. The suit alleges that Jamestown was negligent and jurisdiction*fn1 is based on diversity and jurisdictional amount. The law of Pennsylvania is, of course, applicable. The plaintiff recovered a verdict and judgment in the sum of $69,769.55 against Jamestown and Burns.*fn2 Jamestown has appealed.
At the close of plaintiff's case Jamestown moved orally for a non-suit, a directed verdict and a new trial. After verdict and judgment Jamestown filed a motion pursuant to Rule 50(b), F.R.C.P., 28 U.S.C., to have the verdict and judgment set aside and judgment entered in its favor, and in the alternative to have a new trial granted. Jamestown contended that proof of its negligence was insufficient and that contributory negligence on the part of McKee had been shown as a matter of law. Jamestown asserted also that the court below was in error in refusing to admit in evidence a police report of the accident, in refusing to charge as requested, in failing to explain the concept of "present worth" of a sum sufficient to compensate the plaintiff and those whom she represents, in directing the jury to bring in a verdict in a single lump sum of money, and in permitting an excessive verdict to stand. The court below rejected the contentions and by its order denied the defendant's motion. See 101 F.Supp. 794.*fn3
The pertinent facts are as follows. Jamestown's delivery truck rounded a curve on Depot Street and was proceeding east in the Borough of St. Marys. The curve is approximately 200 feet from the point at which the accident occurred. About 100 feet from the curve Depot Street ends and Curry Avenue commences. Curry Avenue, a dead-end street, sixteen feet wide and with black top paving, leads east in the same direction and is an extension of Depot Street. The collision took place on Curry Avenue, 100 feet from its junction with Depot Street, about 1:30 P.M. on a hot clear day.
In the vicinity of the accident on Curry Avenue are located several houses, a grocery store (to which Jamestown's truck was about to make delivery), a beer garden, and the rear of the plant of the Stackpole Carbon Co. At the point where Depot Street in effect becomes Curry Avenue, Tannery Street intersects from the south. Tannery Street does not project north, with the result that the intersection 100 feet from the accident is a "T". The normal course of traffic is on Depot and Tannery Streets and not on dead-end Curry Avenue. At the time of the accident there were no vehicles in motion other than the delivery truck on any of the three streets insofar as is here pertinent.
About 100 feet from the "T" intersection of Depot and Tannery Streets and Curry Avenue the delivery truck hit the steel cable. The cable was hitched to the steel beam with the intention of winching it by a winch on a truck from the north side of Curry Avenue, where it had been delivered by railroad, to the south side of Curry Avenue, where Burns, with McKee, the deceased, as foreman in charge, was erecting an addition to the Stackpole Carbon Co. The beam was ten inches by twenty feet and weighed 720 pounds; it had been loosened from a pile of similar beams lying 30 feet north of Curry Avenue; and it lay 10 or 15 feet north of Curry Avenue when McKee with helpers attached the steel cable. At the moment of the collision, the beam, according to a witness, Robert Burns, a brother of the third-party defendant, had not been moved. Burns testified that the accident happened "just as the thing [the steel cable] tightened up". According to Hoffer, another eye-witness, the beam had been moved three to four feet by the winch and cable when the accident occurred. These witnesses had equal opportunity to observe what happened for they both were workmen engaged in the building project and were standing to the rear and to one side of the beam. The collision caused both the beam and McKee to be thrown 30 feet and 45 feet, respectively.
Wheeler, the driver of the bread truck, may or may not have been able to see McKee, Robert Burns and Hoffer near the steel beam on the north side of Curry Avenue. Guthrie, operator of Burns' winch, testified that cars, customarily parked on the side where the beam lay and between the beam and the direction from which the bread truck proceeded, had all been moved to make room for the pile of beams.This was contradicted by Police Chief Goetz who stated that he had observed cars parked at this point throughout his patrols during the week preceding the accident, as well as by photographs taken within two hours of the accident in which parked cars appeared. Wheeler testified that he saw no one but did not recall whether cars were parked so as to obstruct his view.
It is clear that there was no outward sign of building activity on the other side, viz., on the south border of Curry Avenue. A pile of bricks lay a little off the street to the south but a white house obstructed Wheeler's view of the new construction. The truck containing the winch was parked 30 feet south, off the road and actually within the new building. Wheeler, however, stated that he knew from the previous occasions on which he had made deliveries to the grocery store that the building construction was in progress. He testified, however, that he saw only a truck parked along the south side of the street which he avoided by making a slight turn. The street was otherwise clear of vehicles.
Across the middle of Curry Avenue, however, was the steel cable. It was one-half inch in diameter and its color was black according to all the witnesses, having become so through accumulated grease and dirt. It lay on the black macadam road, which was also dusty, until hoisted by the pull of winch. According to Guthrie, at the moment of collision the cable was three to four feet above the road directly perpendicular to the course of traffic on Curry Avenue. Physical examination showed that the cable had struck the headlights on the delivery truck.
Burns, McKee's employer, had intended that the steel beams would be hauled by truck across the street rather than by winch and cable. He had instructed McKee to put out flags*fn4 because he saw that the intersection was a "dangerous" one. Burns told McKee: "George, put out your flags. Be sure to put out your flags." No flags or similar warning were put out, however.
A minute or so before the accident, Henery, a nephew of McKee, 17 years of age, was sent out at McKee's direction to "flag". Henery wore a T undershirt and trousers and carried nothing to indicate that he was "flag" man. He proceeded diagonally from the beam which was then lying 10 to 15 feet north of Curry Avenue and thence along the north side of this street toward the "T" intersection. Henery's exact position and his efforts to "flag" are in dispute, and the speed of the oncoming bread truck is likewise controversial. McKee had told Henery to flag "just before"*fn5 telling Guthrie to start the winch. Guthrie had crossed the street to the cab of the winch truck to operate the winch. The cable either had merely tightened or had already tightened and had moved the beam three to four feet.
No one saw the approach of the truck except Henery*fn6 and no one observed Henery's movements. Henery's testimony as will appear, was contradicted by a prior version attributed to him. It is clear, however, that Henery gave no warning until the bread truck reached the "T" intersection and indicated by its action that it was going to enter Curry Avenue rather than follow the normal course of traffic which turned off Depot into Tannery Streets. Henery's evidence was consistent on this point. The truck, therefore, received no warning signal until it was within at least a 100 feet of the point of collision.
At the trial Henery maintained that the truck was traveling 40 miles per hour and continued this speed to the point of impact; that he first saw the truck when he was two or three feet north of Curry Avenue about "half-way" (which is 50 feet) toward the intersection; that he stepped to the edge of Curry Avenue and waved his left arm several time at one second intervals*fn7 when he saw the truck fail to turn to its right; and that he waved both hands and shouted when the truck came abreast of him. Henery conceded that he was ...