decided: January 9, 1959.
STANLEY J. REKASIE, APPELLANT,
BUCYRUS-ERIE COMPANY, A CORPORATION (MACDONALD ENGINEERING CO., A DELAWARE CORPORATION, THIRD PARTY DEFENDANT).
Before BIGGS, Chief Judge, and McLAUGHLIN and HASTIE, Circuit Judges.
The plaintiff-appellant, Rekasie, seeks to impose liability upon Bucyrus-Erie Company, the defendant-appellee, for personal injuries incurred by him while working on a construction job in Pennsylvania on the theory that a hook used on a crane by MacDonald Engineering Company, the third-party defendant, was of a type which, lacking certain safety features, was negligently employed by MacDonald Engineering Company under the circumstances. The court below directed a verdict in favor of Bucyrus-Erie. Jurisdiction is based on diversity and the law of Pennsylvania governs. The record demonstrates a failure of proof in two vital respects: first, there was lack of evidence to prove that the hook complained of was supplied by Bucyrus-Erie Company; second, there was no adequate evidence from which the jury would have been entitled to find that the use of the kind of hook, which the plaintiff asserts was employed, constituted negligence under the circumstances. Consequently the judgment will be affirmed.
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