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May 22, 1961

Howard SMITH

The opinion of the court was delivered by: WOOD

We have tried this case twice. At the conclusion of the first trial, the defendant Hobart made a motion for judgment N.O.V., asserting grounds in support thereof which are substantially the same grounds as are set forth in the present motion. The defendant's position is that as a matter of law any negligence in designing the meat grinder, which the jury may have ascribed to Hobart, could not render Hobart liable for the plaintiff's injuries because the grinder was not being used for the purpose for which it was intended when it was operated by the plaintiff without the guard in place. Putting it another way, the defendant contends that the removal of the guard by the employees of the third-party defendant was an independent force which amounted to a superseding cause, thus breaking the chain of causation between any negligence on the part of Hobart and the plaintiff's injuries.

 We add here a second reference to 28.10 of 'The Law of Torts' by Harper and James. That section states that if negligent design creates an unreasonable risk of harm to the plaintiff, the manufacturer's liability to the plaintiff is generally not cut off by an intervening act -- in this case the removal of the guard from the grinder by the third-party defendant -- even though that intervening act was negligent and no harm would have come to the plaintiff without it, providing such intervening act was foreseeable. It has been our view that reasonable men could differ on whether or not the operation of the machine without the guard was foreseeable; therefore, we think the question was one for the jury.

 The jury was instructed that foreseeability was an important factor in the case, and that one who commits a negligent act is responsible for it if it should have been reasonably anticipated or foreseen that the failure to act prudently would cause harm. The question, thus posed in terms of proximate causation, was resolved by the jury against Hobart, with the necessary implication that the jury found the injury foreseeable even though the machine was being operated without the guard. For these reasons, we think that the defendant's motion for judgment N.O.V. should be denied.

 As an alternative to its motion for judgment N.O.V., the defendant seeks a new trial. The ground asserted is that the trial judge erred in his instructions to the jury with regard to the statutory law of the Commonwealth of Pennsylvania and the Regulations of the Department of Labor and Industry promulgated thereunder. A short description of the function of the statute and regulations at the trial will clarify our ruling on this motion.

 The General Safety Law (43 P.S. §§ 25-1 through 15) provides for the safety of persons employed within the Commonwealth. The Act regulates the construction of buildings wherein persons are employed, the guarding of machinery, etc. Penalties for non-compliance are provided. Section 25-12 provides that the Department of Labor and Industry shall make regulations for carrying into effect all the provisions of the Act. Rule 4 of the Department's Regulations for Miscellaneous Hazards and Conditions of Employment, provides as follows:

 'Meat Grinding

 '(a) All power-driven meat grinders of the worm type shall be so constructed that meat can be safely fed to the worm by one of the following methods:

 '1. By a mechanical method of feeding the worm.

 '2. By the use of a permanently attached neck to the cylinder enclosing the worm which shall have an opening of not more than 2 1/2 inches in diameter at a point at least 4 1/2 inches above the worm.

 '3. Other means of protection may be provided when approved by the Industrial Board.

 'Approved January 12, 1927.'

 The function of the Department of Labor and Industry's Bureau of Industrial Standards was explained at the trial by its director, Mr. T. A. Oravecz. He said, 'The Bureau of Industrial Standards, as the name more or less implies by 'Industrial Standards', is the agency which acts as the initiating office, the clearinghouse for forging ahead in the drafting the proposal, the writing, the maintaining of safety regulations up to date in the Commonwealth of Pennsylvania. In addition, a very important item is the consideration of approval of various devices and safety appliances which are required to be considered by the Industrial Board and which are referred to the Bureau of Industrial Standards as the engineering office to make a determined analysis and recommendation of report * * *' (NT172). 'During the month of August of 1955, * * * the entire inspection staff, including Bureau directors, undertook a program, a five-week training program, on the techniques of safety inspection and investigation to be conducted throughout the Commonwealth in line with the specific workings and duties of the Department of Labor and Industry.' (NT173). With this explanation, Mr. Oravecz proceeded to testify that the Hobart grinder did not comply with Rule 4 of the Department's Regulations. He also testified, as an expert in his own right, that in his opinion the Hobart machine was not reasonably safe for the operator and should have been designed so as to include one or more of three separate safety devices known to the industry. In addition, the plaintiff produced another expert who testified to the existence and necessity of the same sort of safety devices.

 The jury having been presented with the evidence described above, the trial judge instructed the jury on the role of the expert witness in a case of this kind and also instructed them that they could consider the Safety Law and the Regulations of the Department of Labor and Industry as a factor in their deliberations when they were deciding whether the design of the Hobart grinder was reasonably safe or whether Hobart was negligent in failing to include some of the safety devices described in the evidence. It must be emphasized that the jury was instructed in all of the common elements of the ...

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