McLaughlin, Staley and Van Dusen, Circuit Judges.
Plaintiff-appellee, Frank G. Greco, an employee of the Jones & Laughlin Steel Corporation (hereinafter "J. & L.") suffered serious personal injuries when a magnetic sheet piler malfunctioned at the J. & L. Pittsburgh mill. He brought this diversity action for compensatory damages against the Bucciconi Engineering Company (hereinafter "Bucciconi"), the manufacturer of the piler, and Wean Engineering Company (hereinafter "Wean"), the ultimate seller. J. & L. was joined as a third-party defendant in the district court.
Applying Pennsylvania law, the district court dismissed appellee's allegations of negligence against Bucciconi and Wean and charged the jury on the basis of strict liability in tort (Restatement (Second) of Torts § 402A (1965)).*fn1 The jury returned verdicts for appellee against Wean and Bucciconi, and in its answer to a special interrogatory, the jury found that J. & L. was negligent and that this negligence was a proximate cause of appellee's injury.
Following the verdicts, Bucciconi and Wean each filed post trial motions, and with the exception of one point not material here, the district court denied these motions and entered judgments in favor of appellee against Wean and Bucciconi. A judgment of indemnity was also entered in favor of Wean against Bucciconi. From the entry of these judgments Wean and Bucciconi now appeal.*fn2
The piler in question was delivered to J. & L. in three sections and assembled by J. & L. employees. Its function in J. & L.'s new sheet coating line was to collect and pile sheet metal in preparation for shipment to J. & L.'s customers. Sheets of steel came into the piler by means of an overhead magnetic conveyor. Magnets in the conveyor would deactivate when the sheets were directly over the piling area and the sheets would drop between parallel side guides and end stops onto a lift or hoist which was lowered by an operator after a certain number of sheets had settled on it. When this hoist was being lowered to carry the piled sheets to a conveyor system, two strips of metal called "fingers" would protrude from the side guides of the piler to catch and hold the newly arriving steel sheets. When the hoist returned, the fingers would retract into the side guides of the piler, and those sheets that had been collected by the fingers would settle onto the hoist.
Soon after the piler went into operation its fingers began to retract erratically without activation from the operator at the control panel. Four days prior to appellee's injury, J. & L. inserted two "pins" in the fingers in an attempt to prevent this retraction and the resultant spilling of the steel sheets to the floor. Neither appellee nor the other employees were instructed in the use of these pins. It was appellee's belief, based upon his limited experience with the pins during the short time they were in use, that the fingers could not malfunction as long as one of the pins remained inserted; he was not told otherwise. On the day of the accident, with one pin in and the other out, appellee reached beneath the sheet-catching fingers to straighten and center wrapping paper on the hoist as it rose to collect a new pile of steel; without any activation from the control panel, one of the fingers retracted causing the sheets above to tumble down atop appellee's outstretched hand.
Section 402A of the Restatement (Second) of Torts, provides:
"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
"(a) the seller is engaged in the business of selling such a product, and
"(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
"(2) The rule * * * applies although
"(a) the seller has exercised all possible care in the preparation and sale ...