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October 22, 1971

Alvin H. FRANKEL, Administrator of the Estate of Anthony Recchia, Deceased,
LULL ENGINEERING COMPANY, Inc. The RANSOME CORPORATION v. Guido Carl RECCHIA, individually and trading as G.C. Recchia Brickwork

Fullam, District Judge.

The opinion of the court was delivered by: FULLAM

FULLAM, District Judge.

 Before the Court in this personal injury action are defendants' post-trial motions.

 The action arose out of an accident at a construction site on July 24, 1965, when a high-lift loader overturned and crushed plaintiff's decedent, the loader's operator. Defendant Ransome was the dealer who sold the machine to the contractor, Guido Carl Recchia, the third party defendant, who employed plaintiff's decedent. Defendant Lull was the manufacturer of the machine.

 The following facts are essentially undisputed. Plaintiff's decedent, Anthony Recchia, employed by his twin brother, Guido Carl Recchia, was operating a Lull 4D-40 high-lift loader at the construction site. This machine, similar to a large lift truck, rides on four large, tractor-type tires. Mounted on the front of the loader is the boom, a large hydraulically operated steel framework which can be raised in the air. Mounted perpendicularly to the ground at the end of the boom is the "mast" on which the forks used for carrying the load are mounted. The forks can be raised and lowered on the mast.

 The accident occurred as plaintiff's decedent finished delivering the third load of scaffolding. After the scaffolding had been removed from the forks, the machine began to back away. As it did, a man on the building's roof noticed the boom beginning to swing. Plaintiff apparently attempted to jump clear of the machine but was crushed by one of the arms of the boom as the machine toppled over on its side.

 Plaintiff's theory of the accident was that as Anthony Recchia backed away from the building after completing his third trip, the loader's defective brakes prevented him from stopping so he could lower the boom before moving down the slope and going to get another load. As the loader continued to roll backward, the defect in the steering resulted in the loader turning. These movements of the loader combined with its inherent unreasonable instability caused the loader to tip over. Lull's position was that, while the loader was certainly not unreasonably unstable, Ransome may have been partially responsible for the accident by supplying a loader with defective brakes and steering, for which it was solely responsible and which, when coupled with the operator's negligence in failing to lower the boom all the way before moving the machine, caused the machine to go out of control and turn over. Ransome, on the other hand, took the position that the brakes and steering were not defective; that there was no proof they caused the accident; and that the real cause of the accident was the loader's inherent instability.

 At the conclusion of an eight-day trial, the jury, responding to special interrogatories, found:

1. The accident occurred because the "loader was in a defective condition, unreasonably dangerous to the user."
2. The loader was in an unreasonably dangerous condition because of defects in design, brakes and steering, all of which combined to cause the accident.
3. Lull was responsible for the defect in design and Ransome for the defects in brakes and steering.
4. Anthony Recchia did not assume the risk with respect to any of the defects.
5. The loader was not in a defective condition unreasonably dangerous to the user because of the absence of seat belts or an enclosed cab.
6. Lull and Ransome were both negligent and their negligence was the proximate cause of the accident. *fn1"
7. Guido Recchia was either not negligent or his negligence was not a proximate cause of the accident.
8. Anthony Recchia was not guilty of contributory negligence.

 Thus, liability was imposed against both defendants, and the third-party defendant was exonerated. After the jury returned their findings on the liability issues, the parties agreed that damages amounted to $250,000.

 Both defendants raise numerous issues in the briefs in support of their post-trial motions. Since Lull and Ransome take quite different positions on the issues in the case, their motions will be discussed separately except where they relate to their liability inter se.

 Ransome's Motion for Judgment N.O.V.

 Ransome asserts two grounds for judgment n.o.v.; first, that plaintiff failed to prove proximate cause and, second, that Anthony Recchia assumed the risk of the accident.

 In support of its first ground, Ransome argues that the testimony of Epps and Korth, the two eyewitnesses to the accident, was that the accident occurred on substantially level ground after the loader had moved only about four feet from the building at very low speed. Ransome further points out that there was no direct evidence that Anthony Recchia applied the brakes or that a defect in the steering gear caused the loader to move in a direction that he did not intend. Ransome concludes "it is highly improbable that in the few feet of motion and at the very slow speed involved, this turnover had anything to do with brakes or steering." (Ransome Brief at 5.) Ransome also asserts that the opinions of plaintiff's experts that defective brakes and steering played a role in bringing about the accident were both insufficiently definite and without an adequate factual foundation and that, therefore, the opinions added nothing to plaintiff's case on causation.

 Plaintiff's burden on the causation issue was to prove that it was more probable than not that defective brakes and steering were a substantial factor in bringing about the accident. There being no direct evidence on the causation issue in this case, plaintiff was forced to rely on circumstantial evidence. The definitive statement of the circumstantial evidence required in Pennsylvania ( Kridler v. Ford Motor Co., 422 F.2d 1182, 1183-1184 (3d Cir. 1970)) to permit the jury to determine causation is found in Smith v. Bell Telephone Co., 397 Pa. 134, 153 A. 2d 477 (1959). Kridler, supra ; Denneny v. Siegel, 407 F.2d 433, 439-440 (3d Cir. 1969); Jones v. Treegoob, 433 Pa. 225, 229-230, 249 A. 2d 352 (1969). Smith abrogated the earlier rule that a jury would not be permitted to determine causation where the evidence could establish a number of reasonably probable causes. Instead, Smith held "that the evidence [need only] be such that by reasoning from it, without resort to prejudice or guess, a jury can reach the conclusion sought by plaintiff * * *." Smith, 397 Pa. at 138, 153 A. 2d at 479.

 Although parts of the testimony of Epps and Korth support Ransome's description of the occurrence of the accident, Ransome's characterization of the essence of their testimony is inaccurate. Accordingly, to apply the rule of Smith to this case, it is necessary to summarize the testimony of these two witnesses and some of the other evidence in the case.

 Epps was on top of the building to which the loader was delivering materials and, when the accident occurred, was in a position to see only the top part of the boom. However, the jury could have fairly found from Epps' testimony that after the load had been deposited, the boom began to move slowly away from the building, did not stop as it had in the past, and then tipped and fell over. (N.T. 70, 73-74.)

 Korth had been watching the construction activity from the window of a restaurant about 300 feet from the accident. The jury could fairly have found from his testimony that he had seen the loader make two deliveries to the side of the building where the accident occurred. (N.T. 413.) After each of those deliveries, Anthony Recchia backed up the loader seven to ten feet from the building, lowered the boom, and backed straight down the hill. (N.T. 423, 426.) When he arrived at the bottom of the slope, he turned 90 degrees and went to get a new load. On the third trip, as the loader was being unloaded, all four wheels were on the level ground near the building. When unloading was completed, the loader backed up but did not come to a complete stop. (N.T. 427.) The machine then started down the slope and at the same time the rear of the loader began to turn to the operator's right. (N.T. 418, 428.) Simultaneously, the boom began to tip and the operator began to leave his seat. (N.T. 414, 428.)

 The police officers who investigated the accident testified that the loader was found on its left side at the foot of the slope, the operator crushed beneath one arm of the boom. (N.T. 86, 97.) In the process of coming down the slope, the rear of the loader had turned 45 or more degrees to the operator's right. (N.T. 89-92, 109.)

 Finally, the jury had evidence from which it could reasonably find that after the accident the brakes and steering were defective and that the loader could have been stopped very quickly at low speeds if its brakes had functioned properly. (N.T. 148, 150-51, 165, 240-49.)

 From the foregoing facts the jury could reasonably infer that the tip-over was a dynamic process, that the loader did not just suddenly fall over, but rather fell over as a result of its movements. Several facts then could reasonably lead to the inference the operator was unable to stop, and had difficulty steering. The fact that the operator did not stop the loader's slow movement when the boom began to tip, given the reasonable assumption that an experienced operator would attempt to avoid the tip-over by stopping the machine, would indicate that the operator could not stop it. The fact the operator proceeded to encounter the slope at an angle, with boom part way up, as he had not done before, would indicate, first, that he could not stop the machine and, second, that he lacked control over its direction of travel. Finally, Korth testified that the loader "did not ...

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