Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1969, No. 234, in case of Andrew J. Kuisis v. Baldwin-Lima-Hamilton Corporation v. North Star Coal Company.
Giles J. Gaca, with him Janet N. Valentine, and Thomson, Rhodes & Grigsby, for appellant.
Thomas J. Jackson, with him G. Daniel Carney, and Thorp, Reed & Armstrong, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, and Packel, JJ. (Cercone, J., absent.) Dissenting Opinion by Spaulding, J. Hoffman, J., joins in this dissenting opinion.
[ 224 Pa. Super. Page 66]
Dissenting Opinion by Spaulding, J.:
Appellant Andrew J. Kuisis appeals from an order of the Court of Common Pleas of Allegheny County granting appellee Baldwin-Lima-Hamilton Corporation's motion for judgment on the whole record. The order followed trial and submission of the case to a jury, which was unable to agree on a verdict, and therefore dismissed. At trial, the appellant attempted to establish product liability, under § 402A,*fn1 for a defect in a crane that was twenty-one years old. He was working near a load held suspended by the crane when the load suddenly dropped on him, causing serious injury. Appellant presented evidence to show that the accident was caused by the defective design of the brake locking device on the crane. The trial judge, however,
[ 224 Pa. Super. Page 67]
excluded much of the proffered testimony of the appellant's expert witness.
To reach the jury in a products liability case, plaintiff must show that a defective condition of the product caused injury to the user. Proof of the happening of the accident may be sufficient to prove a defective condition. ". . . [T]he occurrence of a malfunction of machinery in the absence of abnormal use and reasonable secondary causes is evidence of a 'defective condition' within the meaning of § 402A . . . ." MacDougall v. Ford Motor Co., 214 Pa. Superior Ct. 384, 391, 257 A.2d 676, 680 (1969). In addition, plaintiff must show that there was no substantial change in the defective ...