time when the painters were standing by, waiting to start work. That evidence afforded ample support for the jury's conclusion that Murphy's men had taken adequate steps to assure themselves that the machine was inoperable and presented no danger to them. Stark v. Lehigh Foundries, Inc., supra.
(b) Westinghouse's second contention, that it had discharged its obligation to warn the painters by warning the contractor, also lacks merit. Even assuming that Westinghouse had warned the contractor that these machines were dangerous and that the contractor should check to make sure that the power to a machine was cut off before commencing to paint it (testimony which the jury was free to disregard), the question remains whether such warning was adequate under the circumstances. The cases upon which Westinghouse relies [ Palenscar v. Michael J. Bobb, Inc., 439 Pa. 101, 266 A. 2d 478 (1970); Janowicz v. Crucible Steel Co., 433 Pa. 304, 249 A. 2d 773 (1969); Grace v. Henry Disston & Sons, Inc., 369 Pa. 265, 85 A. 2d 118 (1952); Engle v. Reider, 366 Pa. 411, 77 A. 2d 621 (1951), overruled in part, Mathis v. Lukens Steel Co., supra ; Valles v. Peoples-Pittsburgh Trust Co., 339 Pa. 33, 13 A. 2d 19 (1940); Celender v. Allegheny County Sanitary Authority, 208 Pa. Super. 390, 222 A. 2d 461 (1966)] for its assertion that a general warning regarding dangerous conditions relieves a possessor of land of liability are inapposite.
Grace, Engle and Valles, are all cases in which the contractor was in exclusive control of the premises or the repair operation. The rationale appears to be that under such circumstances the possessor of land has neither the authority nor the ability to control the conduct of the contractor's employees or the premises. The Pennsylvania Supreme Court has consistently indicated that the holdings of these decisions should be limited to exclusive control situations. See, e.g., Mathis v. Lukens Steel Co., supra; Cooper v. Heintz Mfg. Co., 385 Pa. 296, 122 A. 2d 699 (1956). Celender and Palenscar hold only that an employee of a contractor cannot recover from the possessor of land for injuries sustained as a result of the very defects which the contractor had undertaken to repair, and as to which, presumably, the contractor was the more knowledgeable. Finally in Janowicz, the court merely stated that the rule in Grace was inapplicable because no warning had been given to the contractor.
In the instant case, Westinghouse, not Murphy, was in control of the premises. It continued to conduct its operations on a very large number of machines while the Murphy men were working on a handful. Moreover, it is clear that neither the painting contractor nor its employees were expert in sources of, or controls for, power to the machines. As noted above, Westinghouse had a great variety of machines with many different types of controls. The controls were so complex that not even Westinghouse employees were familiar with them. There was evidence that the painters had, on earlier occasions, been warned by Westinghouse not to touch the control switches since, on at least one occasion, the painters had mistakenly cut off the power to several machines which were not scheduled to be painted, and on other occasions the painters had started to paint machines which still had electrical power in them and as a result had caused several small electrical fires.
The jury could reasonably have concluded from all this evidence that Westinghouse did not take reasonable steps to warn Murphy's employees of a dangerous condition (i.e. that the power to Fiego's lathe was still on); and/or that Westinghouse did not take reasonable steps to insure that the lathe had been rendered inoperable before permitting the painters to work in and around it; and/or that Westinghouse's employee, Fiego, had lulled the painters into the belief that the lathe had been made ready for them. See Stark v. Lehigh Foundries, Inc., supra ; Cooper v. Heintz Mfg. Co., supra ; Debenjak v. Parkway Oil Co., 159 Pa. Super. 603, 49 A. 2d 521 (1946).
The motion for judgment notwithstanding the verdict will be denied.
2. Motion for New Trial.
In its brief in support of the motion for new trial, Westinghouse stated (page 9) "Various fundamental errors contributed to a failure to give Westinghouse substantial justice. We single out three but do not abandon the others (see footnote, infra)." A careful reading and rereading of the brief fails to disclose any "footnote, infra " setting forth "various fundamental errors," consequently I will deal only with the ones which Westinghouse has discussed in its brief.
A. Opinion Evidence.
Plaintiff presented testimony of a safety expert, Edward B. Landry, who was asked on direct examination:
"[Q]. Now, Mr. Landry, do you have an opinion, based upon reasonable certitude, as to what were the usual and customary safeguards which should have been applied in this type of situation to protect outsiders coming in on the premises?" (N.T. pp. 219-20)
Landry answered that he had an opinion, and stated as his opinion that customary safety practices required that Westinghouse safety personnel should have established a procedure placing upon one of Westinghouse's supervisory personnel the responsibility of insuring that a machine to be painted was inoperable or otherwise rendered harmless. Landry explained in some detail the procedures which should have been followed and also the various methods of rendering the lathe harmless.
Defendant asserts that this testimony "reversed" Pennsylvania law in that it imposed upon a possessor of land the duty to correct a danger, rather than simply to warn about it. Defendant complains that such testimony improperly permitted the expert and the jury to pass judgment on the law.
The court's disagreement with defendant's view of the law has already been set forth in the discussion on the motion for judgment n.o.v., and it will not be repeated here. The expert was permitted to testify as to customary safety procedures and the matter was submitted to the jury as a question of fact. It is proper to present testimony as to customary safety practices and procedures, so long as the ultimate determination as to whether defendant's conduct was negligent is left to the jury. See King v. Darlington Brick & Mining Co., 284 Pa. 277, 131 A. 241 (1925); 1 Henry, Pennsylvania Evidence, § 572, p. 589. The court's instructions clearly submitted this as a factual matter for the jury's determination. (See Charge, N.T. 509-512).
Defendant also asserts that the opinion expressed by Landry was inadmissible because the hypothetical question contained an erroneous assumption, i.e., that the painters had received no instructions with regard to turning off the electric current.
Under Pennsylvania law, "[an] expert cannot express a conclusion based on facts not in evidence * * * [or] not warranted by the evidence." 1 Henry, Pennsylvania Evidence, § 562, p. 566. It is, however, quite proper to base a hypothetical question on facts the party offering the testimony may reasonably deem established by the testimony of his own witnesses. Id. There was testimony in plaintiff's case that the painter employees had received no direct written or oral instructions from Westinghouse personnel as to the proper methods for shutting off the power to the various machines. In light of that testimony, it was proper to incorporate that assumption in the hypothetical question to the expert witness and for him to express his opinion thereon.
B. Court's Instructions as to Westinghouse's Duty to Warn.
Westinghouse also argues that the court improperly left it up to the jury to decide what duty a possessor of land owes to an employee of a contractor, instead of charging that the possessor owes no duty to such an employee with respect to a dangerous condition which is known to the contractor. Like the preceding argument, this contention is premised on the erroneous assumption that under Pennsylvania law a possessor is relieved of liability to an employee of a contractor merely by giving the contractor a general warning of a dangerous condition.
I instructed the jury that Westinghouse, as a possessor of land, owed a duty to employees of a contractor to keep the premises in a reasonably safe condition or adequately warn them of non-obvious dangers. I then instructed them that in deciding this question they were to determine whether warnings were given to either Murphy or its employees, and whether the warnings, if any, were adequate in light of the degree of danger involved, the customary safety practices, the lack of expertise on the part of the painters, the complexities of these machines, and other relevant factors. As has already been indicated, these instructions are in accord with applicable Pennsylvania law. See Mathis v. Lukens Steel Co., supra; Stringert v. Lastik Prods. Co., supra ; Stark v. Lehigh Foundries, Inc., supra.
C. Earnings Increase Factor.
The next ground advanced for a new trial is that the court erred in permitting an actuary to testify regarding an "earnings increase factor" in giving present worth values for future losses.
The plaintiff presented evidence through Murphy's payroll clerk that decedent's earnings for the full year prior to his death was $8,075.24, and for the month of January, 1967, was $687.00; that his earnings were based on an hourly union wage rate of $4.37 per hour; that the hourly rate had increased in 1968 to $4.66 1/2 per hour, in 1969 to $4.91 1/2 per hour and in 1970 to $5.21 1/2 per hour, or a 19% increase in approximately four years.
Plaintiff then presented an actuary, Mr. Leonard Goodfarb, who testified as to decedent's life and work expectancy. He gave to the jury the amounts of money required to be invested to produce one dollar a year for different periods of time, reduced to present worth at 6% as required by Pennsylvania law. See Brodie v. Philadelphia Transp. Co., 415 Pa. 296, 203 A. 2d 657 (1964). Mr. Goodfarb then gave present worth figures giving effect to an earnings increase factor, which as explained by Mr. Goodfarb, is
"a factor used by actuaries in their evaluation of pension programs where the pension to be paid the employee is based on his earnings for the last five or ten years of employment. Since that period may be many years hence, we have the problem of estimating future earnings in order to arrive at the cost of pensions, and we therefore have an earnings increase factor as part of our work." (N.T. 263).
Goodfarb testified that an earnings increase factor of 3 1/2% per year was used by his office and that this factor was based on an assumption that average earnings of employees will continue to increase at that rate.
The jury was instructed to determine what they believed was the earning capacity of decedent in the future, including any possible increase or decrease in earnings. The jury was specifically charged that it was up to them to accept or reject the earnings increase factor as testified to by the actuary. It was explained to the jury that by accepting and applying that factor they would be deciding that decedent's earnings would be increasing at the average rate of 3 1/2% over the next 20 or 30 years.
Westinghouse argues that permitting testimony as to an increase earnings factor was error because it effects a reduction of the 6% rate at which future losses are required to be reduced to present worth under Pennsylvania law.
Counsel obviously misconceives the thrust of the testimony as to "earnings increase factor." It is simply an attempt to project, at a certain rate, future increases in wages. Under Pennsylvania law a jury may properly consider the possibility of increases and decreases in a plaintiff's wages in computing damages for future losses. See Brodie v. Philadelphia Transp. Co., supra. As pointed out above, there was testimony that painters' wages had risen some 19% from 1967 to the date of trial, a rate higher than 3 1/2% per year. Goodfarb's testimony projects that earnings will continue to rise at the rate of 3 1/2% per year and he gave the jury figures as to the amounts of money required to be invested today at 6% to produce the increasing wage losses over the period of years. The effect of such testimony is to take some of the conjecture out of the jury's consideration and calculation of possible future wage increases by translating average increases of earnings into a mathematical formula. I find nothing in Pennsylvania law to prohibit such testimony. It certainly does not in any way violate the Pennsylvania requirement to reduce future losses to present worth at the rate of 6%.
What is open to question is that such testimony assumes a fairly constant rate of increase, reflecting a continuing inflationary spiral. There are different points of view on this subject and some courts have, therefore, disapproved such projections, at least as they are intended to reflect a continuing decline in the value of the dollar. See, e.g., Sleeman v. Chesapeake and Ohio Ry. Co., 414 F.2d 305 (6th Cir. 1969). The testimony here was not in terms of purchasing power, as such, it was offered solely in terms of continuing increases of wage rates, although concededly the one has an effect upon the other. In any event, in my view, there is ample basis in the experiences of the recent past for jurors to conclude that the upward trend will continue for the foreseeable future. Rather than permit them to speculate as to how to make proper allowances in their computation of future losses, it seems preferable to permit an expert (the actuary) to give them guidance. See Haddigan, Admr. v. Harkins et al., 441 F.2d 844 (3d Cir. 1970). The court's only concern with this testimony is whether there was sufficient basis for using 3 1/2% as the rate of increase. Goodfarb's only testimony in this regard was that actuaries universally apply rates between 3% and 4% in projecting figures for funding of pension plans. His firm uses the figure of 3 1/2% as midway between the two extremes. This furnishes some foundation, but is it enough? The answer is not at all clear and perhaps one should be forthcoming from the appellate courts. Until there is such appellate court guidance, however, I am not persuaded that the testimony was improper and will not order a new trial on this ground.
D. Miscellaneous Points.
In its brief, defendant has collaterally touched upon other matters as grounds for new trial. They merit little discussion.
(a) There is a contention that the verdict was against the weight of the evidence. Discussions of other contentions in other parts of this opinion reveal substantial factual support for the jury's finding that Westinghouse was negligent and that the decedent and Murphy were not negligent.
(b) There is also an assertion that the jury's verdict under the Survival Act was excessive. The award was large but it was not excessive and the separate awards under the Survival Act and the Wrongful Death Act were clearly not duplicated. Ferne v. Chadderton, 363 Pa. 191, 69 A. 2d 104 (1949); cf. Johnson v. Baltimore & Ohio R. Co., 106 F. Supp. 166 (W.D. Pa. 1952), appeal dismissed, 202 F.2d 149 (3d Cir. 1953). It does appear that the jury may have mistakenly reversed the Survival and the Wrongful Death awards, but plaintiff is not complaining about the allocation and since, in my view, the total amount awarded is reasonable, defendant has no cause to complain. The misallocation, if it was such, affords no basis for a new trial.
(c) In the course of direct examination of one of defendant's witnesses (Murphy's foreman, William Crouthamel), the following question was asked and answer given (N.T. 394):
"Q. When you last saw Frank Magill prior to his accident, what was he doing?
A. Well, I asked him if it was O.K. I said, 'Maybe we ought to wait a while,' and he says, 'No, the operator says, "It's all yours. Go ahead."' I said 'Where is he?' And he said, 'He went to change clothes.'"
After the answer was completed, defendant's counsel moved to strike certain portions of the answer as hearsay. The motion was denied. It would have served little purpose at that point to strike the answer and to instruct the jury to disregard it since other witnesses had already testified that the operator, Fiego, had made the statement. The statement was not prejudicial, and does not entitle Westinghouse to a new trial.
Defendant's motion for new trial will be denied.
WESTINGHOUSE v. MURPHY, INC.
1. Motion for Judgment N.O.V.
Westinghouse instituted the third-party action against Murphy alleging that Murphy was obligated by contract to indemnify Westinghouse for all losses sustained by Westinghouse in the suit instituted by the administrator. In relevant part, the indemnity clause upon which Westinghouse relies is as follows:
"The Contractor [Murphy] shall indemnify and save Westinghouse harmless (1) from and against all direct or indirect loss of property * * * occurring in or in connection with the performance of this contract and (2) from and against any and all claims, suits, actions, liabilities, damages, or losses whatsoever (including expenses incidental thereto) for or on account of personal injury or death or property damage (other than such injury, death, or damage as shall have been caused solely by the negligence of Westinghouse, its officers, agents, or employees) occurring in or in connection with the performance of this order or contract and sustained by any person whomsoever, including, without limitation, the Contractor, any employee of the Contractor, any employee of Westinghouse, or any other person."