Appeal from order of Court of Common Pleas of Washington County, Nov. T., 1968, No. 29, in case of Paul D. Boyce v. United States Steel Corporation.
Paul A. Simmons, with him Tempest & Simmons, for appellant.
Stephen D. Marriner, with him James D. Strader, and McCreight, Marriner & McCreight, for appellee.
Bell, C. J., Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Barbieri. Mr. Justice Pomeroy concurred in the result. Mr. Justice Jones took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this dissent.
This is an appeal from the grant of the defendant-appellee's motion for summary judgment in a trespass action pursuant to Rule 1035 of the Pennsylvania Rules of Civil Procedure. Appellant filed exceptions to the opinion and order of the lower court which were dismissed and final judgment was entered. It is from this order that appellant has appealed.
The appellant was employed by Clairton Slag, Inc. (Michael M. Schaefer, owner), and on the night of November 12, 1967, hauled a load of slag from the plant of the United States Steel Corporation (Steel) in Clairton, Pennsylvania, to a dump, owned by Steel, called the Peters Creek Storage Area. He had proceeded to the point of raising the bed of his truck to dump the slag when some mechanical defect caused the truck dumping operation to fail and the truck bed not to completely rise. He tried to raise it a few times, but it still failed. The appellant, investigating the reason for the malfunction, placed his arm between the truck bed and the frame of the truck and the truck bed fell,
pinning his right arm. This accident occurred at 10:27 P.M. on November 12, and he remained pinned by the truck bed until approximately 6:30 A.M. the following morning when he was discovered and freed by a fellow employe from Clairton Slag, Inc. As a result of the injuries sustained, appellant's right arm was amputated.
Appellant's cause of action is based on the theory that his injuries were aggravated by the appellee's negligence in failing to: (1) have the dump properly illuminated; (2) properly patrol the dump; (3) check on appellant's whereabouts when they knew or should have known that he had not returned for almost eight (8) hours; and (4) discover the perilous plight of appellant.
Appellant alleged in his complaint and testified in his deposition that on several unspecified occasions prior to the night in question he had seen a black car with Steel markings patrolling the dump. He further testified that the men driving the car were wearing the uniforms of Steel mill guards and that he had spoken to these men on occasion and told them how he relied on them to protect him, and that he was glad they were patrolling for his safety.*fn1 Further, he said that when he left the mill with a load of slag to dump, if he did not tell the guard that this was his last load for the night, the guard knew that he would be returning shortly to pick up another truck load. He also testified that he usually entered and left the mill by either of two of the four gates to the mill and that he had
not told the mill guard that he was proceeding on his last ...