APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. Civil No. 68-1453).
Biggs, Adams and Rosenn, Circuit Judges.
This is an appeal by the defendant manufacturer from an adverse jury verdict in a suit for personal injuries grounded solely upon the strict liability theory of Section 402(a) of the Restatement (Second) of Torts. Since we find appellant's contentions of trial error without merit, we affirm.
Plaintiff Wojciechowski was employed by the third party defendant, Pittsburgh Coal Company Division of Consolidated Coal Company (Employer). The Employer leased from defendant, Long-Airdox Division of Marmon Group, Inc., (Long-Airdox), a number of identical compressed air blasting devices manufactured by Long-Airdox. The Long-Airdox system, a replacement for the older method of blasting with powder to release coal for mining, utilizes a sudden release of compressed air to fracture a coal seam. Air is compressed in a generator located on the company premises. The generator is connected by piping to a number of "blowdown valves," each of which is in turn connected by about 125 feet of tubing to a single shell. The blowdown valve, regulating the air flow to and from the shell to which it is connected, actually consists of two separate control valves. The air supply valve, regulated by a lever, controls the flow of compressed air from the generator into the shell. The bleeder or air release valve, regulated by a removable hexagonal wrench, controls the return flow of air from the shell back to the valve and then into the atmosphere. The shell itself is about fourteen feet long and weighs about eight pounds.
During normal operation a trained, licensed employee, called a shot firer, opens the air release valve and closes the air supply valve, thereby releasing most compressed air from the shell. He then walks over to the coal face and inserts the shell into a hole previously made in the face. Assuring himself that no one is in the vicinity of the shell, he then returns to the blowdown valve. He uses the wrench (hex key) to shut the bleeder valve and he manually opens the air supply valve, the result being a build-up of compressed air in the shell. After approximately a half minute, the pressure in the shell reaches a predetermined level of approximately 8000 pounds per square inch. At that moment the air in the shell is released from the head with an explosive force sufficient to fracture the coal face in the vicinity. The shot firer, still at the blowdown valve, reverses the air flow by closing the air supply valve and opening the bleeder valve. The air remaining in the shell after the explosion makes a loud hissing noise as it returns from the shell through the pipe to the blowdown valve. The shot firer can then return to the coal face, place the shell into another previously made hole, and repeat the operation. It should be noted that the Airdox system has an automatic repeat feature; if the supply valve is kept open and the bleeder valve kept shut, the shell will fire continuously every half minute as the pressure in the shell rebuilds up to the predetermined level.
The Employer's safety regulations and Long-Airdox's written and oral instructions to the Employer required that the entire operation be performed by a single person and that the shot firer take the hex key with him when he returned to the coal face to move the shell. The rule was intended to protect the person at the coal face. The shell at the coal face can not be seen from the site of the valve. If someone else remained with the hex key at the valve, the latter might through a mix-up in signals prematurely reset the valves and cause the shell to fire before the person at the face was in the clear.
On the evening of Friday, September 1, 1967, plaintiff had fired two shots by himself without incident when his foreman, Davis, requested that plaintiff hurry the blasting operation. Davis suggested that they work together in performing further firings. Plaintiff would stay at the coal face between shots, while Davis would remain at the valve and set off successive blasts. Plaintiff, who had been a shot firer since 1949, complied with Davis' request even though he knew the procedure would violate company safety rules. The first two shots went off without incident, plaintiff placing the shell into holes in the coal face and stepping into the clear, and Davis then setting off a blast. Just before Davis set off the second blast, Baughman, on his way to the coal face where his job was to drill the holes for the shell, came up to Davis at the valve. Baughman waited there until Davis fired the shot. Baughman testified that he saw Davis then shut the supply valve and open the bleeder valve; he then heard the sound of air returning from the shell. Davis told Baughman that he had to leave the valve, but Baughman left the valve for the coal face with no knowledge of whether Davis actually left the valve.
Meanwhile, after Davis' second blast plaintiff returned to the shell. As he was placing the shell in the next hole, the shell gave a full force blast into his face causing him serious injury. The blast occurred in plain view of Baughman, who by that time was at the coal face. Although plaintiff had not heard any sound of air before the blast, immediately thereafter he heard the sound of air bleeding out of the shell. Several employees immediately went to aid plaintiff. However, there was no testimony concerning events at the blowdown valve between the time Baughman left the valve and four to five minutes after the succeeding blast. At that later time the bleeder valve was open as it should be following a blast; the wrench which controlled the valve and had been used by Davis was not there. The deposition of Davis, who died before trial, was read into evidence at the trial. Davis stated that after Baughman left the valve, he had walked away to speak to another employee, Spotty, who was dead at the time Davis gave his deposition.
The same shell and valve were used without incident for the remainder of the Friday evening shift. The following morning, Taylor, the company safety expert, fired the shell several times without incident, finding no evidence of a defect which might have caused the accident.*fn1 Taylor returned to the mine for the entire Sunday night and Monday night shifts to observe the firing of the suspect shell, and during those sixteen hours of continuous firings he saw no malfunction or anything else unusual.
Plaintiff, who was precluded by the Workmen's Compensation Act from bringing suit against his employer, Pittsburgh Coal,*fn2 sued Long-Airdox*fn3 in diversity on theories of strict products liability and also negligent design of the equipment allegedly causing the injury. Long-Airdox filed a third party action grounded in negligence for contribution by Pittsburgh Coal.*fn4 Plaintiff abandoned his negligence theory before any testimony was taken, leaving only his strict liability claim to be tried.
The strict liability claim was based on Section 402A of the Restatement (Second) of Torts (1965), which has been adopted by the Pennsylvania Supreme Court as the law of Pennsylvania.*fn5 Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). That section states:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ...