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NIGGEL v. SEARS (09/21/71)

decided: September 21, 1971.

NIGGEL, APPELLANT,
v.
SEARS, ROEBUCK AND COMPANY



Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1969, No. 853, in case of Raymond Niggel v. Sears, Roebuck and Company and United States Steel Corporation.

COUNSEL

John A. DeMay, for appellant.

Arnold V. Plum, with him Edward R. Lawrence, Jr., and Lawrence, Plum & Lawrence, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 219 Pa. Super. Page 353]

This is an appeal from the Order of the lower court granting a Judgment N.O.V. for defendant-appellee.

In 1968 appellant, a truck driver, was making deliveries to a Sears, Roebuck and Co. store. After the delivery the store manager asked him to take back a number of boxes which were to be returned. The boxes were bound by steel wire around each end of the box, and the wires were joined together by a connection

[ 219 Pa. Super. Page 354]

    twisted by a machine in the store. As the driver lifted a box, two ends of the wire pulled apart at the connection, one end whipping across his face and lacerating his right eye.

After trial before a judge and jury, the jury returned a verdict for appellant in the amount of $12,000. Appellee's motion for Judgment N.O.V. was granted on the ground that appellant failed to show any negligence which was the proximate cause of the accident.

Appellant's case on negligence and causation rested solely on the testimony of his expert witness, a professor of civil engineering at Carnegie-Mellon University. On the issue of whether the unravelling of the wire was the proximate cause of the accident, this witness initially testified that "the connection could have failed." When questioned further he repeated that it "could have failed under these conditions", and went on to say "[y]ou can't say exactly that is the cause of it. That could have been the cause of the failure. It's quite probable that was the cause of the failure." After an objection by appellee's attorney and being cautioned against the use of the word "could", the witness answered "I keep using the word 'could have failed' because that's the word. Under all the information that I have, the box could have failed due to and under these conditions. . . . I don't know what other word. Under the statistics of the situation, under the parameters that we looked at, it is a good probability that the wire system failed under these loads." Finally, after another objection, the witness said, "[y]es, I believe that was the cause of the accident in the context of which we set this thing forth."

In McCrosson v. Philadelphia Rapid Transit Co., 283 Pa. 492, 495-496, 129 A. 568, 569 (1925), our Supreme Court set forth a legal test concerning the sufficiency ...


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