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February 13, 1969

Donald GREEN, a minor by William Green, his guardian and William Green, as parent
SANITARY SCALE COMPANY, an Illinois Corporation, Defendant and Third-Party Plaintiff, v. Max BERMAN, Third-Party Defendant

The opinion of the court was delivered by: DAVIS

 JOHN MORGAN DAVIS, District Judge.

 Donald Green, then age 16 1/2, lost four fingers as a result of placing his hand in an electric meat grinding machine. He was working part time, after school and on Saturdays in the meat market of Max Berman, third party defendant. The machine was manufactured by the defendant Sanitary Scale Company. Although the plaintiff initially was employed primarily to wrap and package meat and to make deliveries, he had on about a dozen occasions operated the meat grinding machine on instructions from the butcher in charge. The machine as originally sold to the third party defendant was equipped with a detachable tray which contained a safety guard. In addition, the machine came equipped with a "pusher" or plunger for the purpose of forcing meat through an orifice into the grinding mechanism.

 At the time of the accident however, the plaintiff was operating the machine without the guard installed and without the benefit of the plunger.

 A jury trial resulted in a verdict in favor of the plaintiffs and in favor of the third party plaintiff against the third party defendant. The latter parties have filed motions for judgment n.o.v. and alternatively, for a new trial.


 It is alleged that the Court erred in failing to charge the jury regarding assumption of risk. We do not join in defendant's assertion that the plaintiff's testimony could reasonably have permitted a jury to conclude that the plaintiff assumed the risk, i.e., that he possessed actual knowledge of the danger, and voluntarily acquiesced therein. *fn1" Pritchard v. Liggett & Myers Tobacco Company, 350 F.2d 479 (3rd Cir. 1965).

 In addition, it is apparent that Pennsylvania law (which we are obliged to follow in diversity cases of this nature), precludes the assertion of assumption of risk as a defense where the plaintiff/employee is employed by one other than the defendant. This principle was first set forth in Kulka v. Nemirovsky, 314 Pa. 134, 139, 170 A. 261, 262 (1934):

Moreover, as plaintiff was employed by another and not by defendant, the doctrine of assumption of risk did not apply to him.

 Subsequently, Kulka was cited with approval in Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 10, 130 A.2d 123 (1957), although the facts in Stark could conceivably have precluded discussion of assumption of risk, as Judge Van Dusen observed in Witcjak v. New Franklin Coal Mining Co., 173 F. Supp. 661 (E.D.Pa.1959).

 While we recognize that the availability of the defense of assumption of risk in an industrial injury may be less than clear, we are constrained to follow the above decisions of the Commonwealth. This was recently approved in Hennigan v. Atlantic Refining Co., 282 F. Supp. 667 (E.D. Pa. 1967), aff'd per curiam, 400 F.2d 857 (3rd Cir. 1968), which also involved an industrial accident case where the court declined to charge the jury on assumption of risk.


 During the course of the trial, the plaintiff was permitted to admit over objections of the defendant, certain rules and regulations of the Pennsylvania Department of Labor and Industry; specifically Rule 4, which sets forth the safety standard for construction and design of meat grinders (P. EX. 1). The defendant asserts that although these safety standards may be germane in the third party action, they are inapplicable in the action in chief, since the regulations are applicable only to "establishments" within the Commonwealth of Pennsylvania. Since the defendant is an Illinois corporation, it asserts that it was not an "establishment" within the meaning and intent of the Regulation.

 This argument disregards the purpose for which the regulations were admitted. In the charge, the Court expressly limited their consideration by the jury, by stating that:

Rule 4 dealt specifically with the safety standard for meat grinding. The failure to measure up to the standards cannot be considered conclusive evidence that the manufacturer was negligent, for the focus of these regulations is toward the conduct of persons or employers who run businesses within the state, and not toward manufacturers of chattels. *fn2"

 The charge then continued:

However, you may consider these regulations as a factor in determining whether the defendant negligently designed its meat grinder; that is, you may consider whether the defendant should have followed these standards or ones similar to them when they designed their meat grinder, and whether failure to follow such standards was a lack of due care. *fn3"


 Similarly, the testimony of the witness Oravecz, Director of the Bureau of Industrial Standards, Commonwealth of Pennsylvania, was not improper. Oravecz, who was also qualified as an expert in industrial machinery and equipment, was asked whether the defendant's meat grinding machine would have met with Bureau approval. *fn4" The defendant asserts that this was error, since the Bureau standards are not necessarily identical to the requisite standard of care under the common law of torts.

 We are not persuaded by this argument, for three reasons. First, the witness was available to the defendant for cross-examination at which time it could be established if the Bureau standard exceeded, was equal to, or was less than the standard of care otherwise imposed by law. Secondly, the jury was thoroughly instructed regarding the probative value and purpose ...

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