15. There was no failure on the part of either Merlo or Carney to exercise reasonable care for the safety of the decedent.
16. An examination of the hoist and truck bed after the accident did not reveal any defect in the equipment used to raise the truck bed. The chain was found disengaged from the hook of the hoist. The hook on the end of the chain affixing it to the truck bed also was found disengaged. When and how the chain became disengaged from the two hooks was unexplained.
17. It was stipulated by the parties that the crane was in proper working condition at the time of the accident.
18. It was stipulated by the parties that the deceased usually reported to his employment one hour before starting time.
19. At no time when the decedent entered onto Merlo's premises did either Merlo or Carney manifest an intention to subordinate the activities carried thereon to the enjoyment of any privilege thereon by the decedent.
20. Prior to the accident the decedent had sufficient knowledge of the activities usually performed on Merlo's premises.
21. As a result of injuries sustained in the accident, the decedent died on May 20, 1955.
22. There was no proof of negligence on the part of Bethlehem which either caused or contributed to the accident and the decedent's injuries.
Plaintiff, relying on the case of International Derrick & Equipment Co. v. Buxbaum, 3 Cir., 1954, 210 F.2d 384, contends that the occurrence of the accident affords a permissive inference of negligence on the part of Merlo under the Pennsylvania Doctrine of Exclusive Control.
Ordinarily, after proof of the occurrence in the plaintiff's case, that doctrine, if applicable, casts a burden on the defendant to come forward with evidence to exculpate himself.
It is our opinion that in the plaintiff's case itself, there is clear and convincing evidence exculpating the defendant Merlo from liability to the plaintiff. The decedent was fully informed as to what Carney was doing; the danger not only was obvious to him but he was warned twice to stand clear. The decedent had all the warning from Carney that he was entitled to expect and assumed the risk thereafter.
Indeed, we think the evidence in plaintiff's own case very clearly shows that decedent assumed the risk of the very danger of which he had been warned, which evidence overcomes the rebuttable presumption of due care.
Merlo, as a possessor of land, owed the decedent the duty of carrying on his activities on the land with reasonable care for the decedent's safety, unless the decedent knew or from facts known to him should have known of Merlo's activities and the risk of bodily harm involved therein. Restatement of Torts 341. The defendant was only required to warn the decedent of his intention to do an act which was likely to cause harm to the decedent when he came into the area endangered thereby. This duty was fully performed. See: Restatement of Torts § 341, subsection c.
The unchallenged proof here is that Carney, while operating the hoist, warned the decedent twice to stay clear of the hoist and the truck bed, but notwithstanding these warnings, the decedent voluntarily placed himself in close proximity to the danger that later proved to be the cause of his death.
Therefore, the court makes the following:
Conclusions of Law
1. The court has jurisdiction of the subject matter.
2. The decedent was a gratuitous licensee on the premises when the accident occurred.
3. Bethlehem Mines Corporation was not guilty of any negligence which either caused or contributed to the decedent's injuries and resultant death.
4. Defendant Merlo, through his employee Carney, fully performed his duty to exercise reasonable care for the safety of decedent and therefore was not negligent.
5. The decedent assumed the risk of injury, having received two warnings from defendant's employee of the very danger which subsequently caused his death.
6. Judgment should be entered in favor of the defendants.