decedent. Plaintiff has not disputed or contradicted this testimony.
Fed. R. Civ. P. 56(c) provides that summary judgment may be rendered "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Ransburg Electro-Coating Corp. v. Lansdale Finishers, Inc., 484 F.2d 1037 (3rd Cir. 1973); Myers v. Nailon, Civil Action No. 70-592 (E.D. Pa. 1973).
This Court is of the opinion that there remains no genuine issue of material facts as to the mechanical relationship of the D. O. James gear reducer and the instrumentality that caused the fatal accident and, as a matter of law, D. O. James cannot be held responsible for the death of Heinz Udo Foecker. Accordingly, the motion of D. O. James for summary judgment must be granted.
Defendant Allis-Chalmers designed and manufactured an electrical switchboard (also referred to as the upper control panel) which controls the operation of the temper mill. Plaintiff contends that Allis-Chalmers failed to provide adequate safety precautions in the manufacture of the control panel in that the design and operation of said controls exposed employees of National Rolling Mills, particularly the deceased Foecker, to unnecessary dangers of which they could not be aware. The complaint also alleges that defendant Allis-Chalmers is liable to the plaintiff on the theory of strict liability in tort and for negligence by reason of the manufacturer's failure to make reasonable inspection to discover defects in the design manufacture of the electrical control panel.
In an affidavit submitted pursuant to Fed. R. Civ. P. 56(e), plaintiff's affiant states that no provision was made by Allis-Chalmers on the control panel for safety devices necessary to protect human beings and that there should have been inscribed on the panel an explicit warning "not to tamper with the circuitry" as manufactured by Allis-Chalmers.
It is well established that the lack of proper safety devices can constitute a defective design for which there may be recovery under § 402(a) of the Restatement of Torts 2d. Ford v. Harnischfeger, 365 F. Supp. 602 (E.D. Pa. 1973); Dorsey v. Yoder Company, 331 F. Supp. 753 (E.D. Pa. 1971); Bartkewich v. Billinger, 432 Pa. 351, 247 A.2d 603 (1968). However, this rule only applies to allow recovery where the absence of the safety device caused an accidental injury which was of the type that could be expected from the normal use of that product. Bartkewich v. Billinger, supra, at p. 354, 247 A.2d 603.
As indicated above, Allis-Chalmers did in fact manufacture and supply to National Rolling Mills the electric switchboard which was installed in the temper mill. According to the testimony of the Chief Engineer of National Rolling Mills, this main control panel was located on the temper mill approximately six feet above the floor line. Martin also testified that at the time of installation the controls on the main control panel could not be operated from the floor level. This fact is of crucial importance, for uncontradicted evidence indicates that the portion of the machinery which caused the decedent's injuries and death was activated by the lower control panel installed by National Rolling Mills. This lower control panel, also referred to as the push-button station, was designed and installed by employees of National Rolling Mills so that the tailholder could be operated from the ground level.
Interestingly enough, plaintiff's affiant made this observation:
"Subsequently the button was removed, and another control panel (the lower control panel) was installed, assembled, designed, and manufactured by National Rolling Mills. This panel operated the hold-down arm which crushed Heinz Foecker between it and the pay-off reel." (Emphasis added.)