they were sold. They had functioned adequately for a period of two weeks and under circumstances wherein much greater stress and weight than at the time of the accident had been placed upon them. The sole proximate cause of the accident was the tilting of an unanchored beam and the sliding of the unanchored U bolts to the center of the beam when it was in a flat or horizontal position and unusual and extreme pressures were applied to the weakest point of the beam. It was the tilting of the beam to this improper position which caused the accident. The tilting was caused by the improper construction of the scaffold and the use of the beams by Bailey of Custodis. There was no obligation upon Ryerson to foresee that simple ordinary precautions would not be taken to keep the beams in proper position and to prevent the very thing that happened. The beam, as even plaintiffs admit, was of proper texture, that its size and weight was proper, and it was not defective in any way. The only claim is that it was inadequate for the purpose. The plaintiffs themselves by their testimony have established that properly used the beam was sufficiently strong to support the weight imposed upon it up to the time of the accident.
Nor does the evidence of witness Bailey as to his lack of knowledge of anchoring and cross bracing establish a custom which would relieve him of the obligation to take reasonable precautions in the erection of a scaffold. As stated by Judge Learned Hand in the case of The T. J. Hooper, 2 Cir., 1932, 60 F.2d 737, 740, 'There are precautions so imperative that even their universal disregard will not excuse their omission'. A simple cross bracing or anchoring would have prevented the tilting of the beam from its upright position to a horizontal position wherein the strength of the beam was radically lessened. Section 401 of the Restatement of Torts does not impose the responsibility upon a vendor to anticipate an improper use of an otherwise adequate chattel. The negligence which caused the accident was that of Custodis solely and not of Ryerson. Therefore, the verdict against Ryerson can not stand.
Defendant has also argued that even assuming negligence in the sale of these beams, the negligence of Custodis was an intervening and superseding cause of the injuries sustained in this accident. From what has been said before, such assumption cannot be made and, therefore, there is no need for an extended discussion of this ground. Without elaborating, it is the opinion of this Court that under the rule of Kline v. Moyer and Albert, 1937, 325 Pa. 357, 191 A. 43, 111 A.L.R. 406, opinion by Justice Stern. later Chief Justice, as implemented by Roadman v. Bellone, 1954, 379 Pa. 483, 108 A.2d 754; see also Humphrey v. Lovejoy, 3 Cir., 1957, 250 F.2d 879; Listino v. Union Paving Co., 1956, 386 Pa. 32, 124 A.2d 83, and DeLuca v. Manchester Laundry and Dry Cleaning Co., Inc., 1955, 380 Pa. 484, 112 A.2d 372; considered in the light of the facts of this case, the evidence is not sufficiently clear to warrant (under an assumption of negligence) the declaration as a matter of law that the action of Custodis was a superseding cause.
Finally, defendant has moved in the alternative for a new trial. Heeding the admonition of the Court of Appeals for the Third Circuit in Green v. Reading Co., 1950, 180 F.2d 149, that where motions are presented for a new trial and for judgment, the trial judge should rule on the motion for judgment; and whatever his ruling thereon, he should also rule on the motion for new trial indicating the grounds of his decision.
It was developed after trial that the key witness for the plaintiffs (Bailey) had shortly after the accident given a written statement substantially at variance with his sworn testimony at time of trial. The verdict in favor of plaintiff Wilson was definitely excessive and showed lack of consideration on the part of the jury. There was an incorrect reference in the charge of the Court with respect to the liability of Custodis for contribution which, although later corrected, might well have intended to confuse the jury.
Taking into consideration the entire record, including but not limiting its consideration to the above factors, the Court is definitely of the opinion that the interests of justice in any event require a new trial. Under the circumstances an order will be entered granting defendant Ryerson's motion for a new trial, in the event that on appeal the action of the Court in granting judgment in favor of Ryerson should be set aside.
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