working in close proximity thereto had a proper request been made.
13. Even had the conveyor belt been a dangerous device and even had defendant been held to reasonably anticipate that plaintiff's working next to it would create an unreasonable risk of harm to him, plaintiff was an experienced steam fitter and at the time of the accident was not using his drill or hammer in a safe manner.
14. Plaintiff had every reason to believe that the concrete floor he was drilling through was reinforced at the depth at which it was in this case and that in drilling through the reinforced concrete floor he might meet anticipated obstruction which could cause the hammer to "kick" and throw him off balance.
15. Plaintiff did not take adequate protection and safeguards to meet the above contingency.
16. The third-party defendant, Ambrose-Augusterfer Corp., is negligent in failing to take the necessary precautions to prevent injury to the plaintiff.
CONCLUSIONS OF LAW
1. This is an action brought under the Federal Tort Claims Act.
2. Pennsylvania law as regards negligence and contributory negligence is applicable here.
3. This Court has both jurisdiction and venue.
4. The defendant, United States of America, was not negligent and did not breach any duty owed to the plaintiff.
5. The plaintiff, Francis C. O'Neill, was contributorily negligent.
6. Although third-party defendant was negligent, since defendant is not liable to plaintiff, third-party defendant cannot be held liable over to defendant-third-party plaintiff.
7. Judgment is hereby entered in favor of defendant, United States of America, as against plaintiff, Francis C. O'Neill, and in favor of third-party defendant, Ambrose-Augusterfer Corp., as against defendant-third-party plaintiff.
If, on appeal, it should subsequently be determined that plaintiff is entitled to recover damages from the defendant, in that event I make the following additional findings of fact on the question of damages:
1. The plaintiff is totally unemployable.
2. The plaintiff is 55 years of age and has a work expectancy of ten (10) years.
3. For a period of three years and nine months prior to the accident, the plaintiff made an average of $5,453.76 a year.
4. From the time of the accident (September 28, 1962) and the time of trial (October 23, 1967), a period of five years and one month, the plaintiff suffered a total loss of earnings of $32,940.25. From this should be deducted admitted earnings from other employment during the years 1963 and 1964 in the sum of $7,369.00, making a net loss in earnings of $25,571.25 in full.
5. For future loss of earnings, earning power, or earning capacity, reduced to present worth at 3%, plaintiff should be awarded the sum of $46,520.57. I have not considered any deduction for one and one-half years plaintiff was confined to a sanitarium for tuberculosis.
6. Plaintiff incurred the following medical expenses which have been proven reasonable and necessary:
Dr. William Cassidy $ 75.00
St. Mary's Hospital 20.00
University of Penna. Hospital 908.35
Dr. Herndon B. Lehr 250.00
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