UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: May 25, 1972.
JAMES C. HENRICH, APPELLANT,
CUTLER HAMMER COMPANY AND MCKAY MACHINE COMPANY
McLaughlin, Van Dusen and Aldisert, Circuit Judges.
Author: Per Curiam
Opinion OF THE COURT
The plaintiff in this diversity action appeals from a jury verdict in favor of the defendants.*fn1 Plaintiff claimed damages on a theory of strict liability*fn2 for injuries to the fingers of his left hand when a slitter machine, manufactured by defendant McKay Company, unexpectedly activated while he was attempting to adjust it. The slitter machine in question was equipped with two separate power disconnect switches, one located on the machine and one in the area proximate to the machine. Plaintiff had been notified by the McKay Company and by his employer that no adjustments should be made on the machine unless the power disconnect switch was thrown.*fn3 Prior to the accident the slitter machine's electrical control system had not been functioning properly and a representative of the McKay Company had been servicing it.*fn4 Evidence was introduced that at the time of the accident two co-workers were in the area of the second power disconnect switch.
Plaintiff argues that the court erred in its charge to the jury on the issue of assumption of risk. The Pennsylvania law, which is applicable in this diversity action, places upon one who voluntarily and unreasonably proceeds to encounter a known danger the risk of that danger and precludes him from recovering against a party under a theory of strict liability.*fn5 Plaintiff contends that his failure to disengage the power could not have been the basis for a finding of such assumption of risk and that it was error to submit the question of assumption of risk to the jury absent other proof of a known danger.*fn6 He argues that by failing to disengage the power, the only known danger that he could have assumed was that the machine might be activated by some human intervention and that he could not have assumed the risk that the machine would activate due to a defect of which he was not aware. The court's charge made clear that the burden of proof was on defendants to show that "plaintiff knew of the danger, was aware of the risk, [and] was aware of the specific danger involved" and that plaintiff was not bound to discover a defect nor was he required to guard against the possibility of its existence. After carefully examining the jury charge, we find no reversible error, since the charge, read as a whole, properly instructed the jury on the appropriate criteria to be applied in making a finding of assumption of risk. We also disagree with plaintiff's contention that it was error to submit the question of assumption of risk to the jury. It was within the jury's province to find that plaintiff's knowledge of defects in the electrical control system, combined with his disregard of the instructions to disengage the power, amounted to a voluntary assumption of a known danger.
Also, we find no error in the instructions to the jury that defendant's liability could be precluded by a showing that the activities of a human agency in activating the machine caused the accident,*fn7 and that the defect which caused the injury may have been in that portion of the wiring not installed by defendants.
For these reasons, the judgment of the district court will be affirmed.