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BARTKEWICH v. BILLINGER ET AL. (11/12/68)

decided: November 12, 1968.

BARTKEWICH
v.
BILLINGER ET AL., APPELLANTS



Appeal from judgment of Court of Common Pleas of Allegheny County, April T., 1965, No. 1311, in case of Edward Bartkewich v. E. K. Billinger et al.

COUNSEL

Henry E. Rea, Jr., with him Brandt, Riester, Brandt & Malone, for appellant.

Thomas L. Cooper, with him McArdle & McLaughlin, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Musmanno took no part in the consideration or decision of this case.

Author: Roberts

[ 432 Pa. Page 352]

This case comes to us after appellee received a jury verdict. Appellant appealed from the denial of its motions for a new trial and for a judgment n.o.v.

The evidence, viewed in the light most favorable to appellee, indicates that appellee, an experienced glass factory worker, was helping to operate a machine built for appellee's employer by appellant. The machine was built to specifications requested by the employer although appellant retained the right and discretion to install any necessary safety devices. The machine was used to break glass and stack glass strips.

On the day of the accident in question, appellee was working on the west side of the machine while his supervisor operated the controls which were on the east side of the machine. During the operating time, the supervisor departed, leaving appellee alone. Appellee noticed that glass was jamming at a place where it was

[ 432 Pa. Page 353]

    not unusual for this to occur, and believed that the machine was being damaged. He thus attempted to remove a piece of glass with his hand, but his glove caught in the machinery and he was injured. Appellee had not been given any specific instructions regarding the operation of the machine, or the dangers if any inherent in its use. Wooden sticks were provided, however, to break up glass jams.

Appellee claims, relying on the testimony of expert safety witnesses, that the machine that appellant provided was defectively designed in that it did not contain adequate safety features, such as an on-off switch on both sides of the machine, or a barrier or other guard to keep individuals from putting their extremities into the machine. We believe that on these facts, this case was improperly submitted to the jury, and its verdict cannot be allowed to stand.

Both parties agree that this case must be decided under Restatement 2d, Torts, ยง 402A,*fn1 see Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). Appellee argues that appellant's machine, without a device to prevent appellant from reaching into the mechanism, was in a "defective condition unreasonably dangerous to the user." Appellee's ...


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