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February 15, 1974

BROCKWAY MOTOR TRUCKS, a division of Mack Trucks, Inc.

Bechtle, District Judge.

The opinion of the court was delivered by: BECHTLE

This is a products liability case based on diversity of citizenship of the parties. The trial of the issues was bifurcated on the questions of liability and damages. After returning a verdict for the plaintiff on the issue of liability, the jury heard evidence as to damages and awarded plaintiff $89,650 as compensation for injuries sustained. The defendant has filed a motion for judgment notwithstanding the verdict and, in the alternative, a motion for a new trial.

 The following facts were basically uncontradicted at trial: Plaintiff, Oscar Clarke, testified that at the time of the accident which gave rise to this litigation he was employed as a truck driver by National Freight Company ("National"). The truck which Clarke was driving was a tractor manufactured and sold by the defendant Brockway Motor Trucks ("Brockway") to Landis Leasing, Inc. ("Landis"), who in turn furnished such truck to plaintiff's employer, National. *fn1"

 On June 23, 1969, shortly after midnight, plaintiff departed from Lawnside, New Jersey, in a tractor-trailer *fn2" with a destination of Altoona, Pennsylvania. Prior to the departure from Lawnside, the tractor-trailer had been inspected by employees of National. Such an inspection is mandated by regulations promulgated by the Interstate Commerce Commission ("ICC"). The evidence indicated that plaintiff arrived in Altoona at approximately 4:30 a.m. After unloading at the Altoona truck terminal, Clarke proceeded to New Stanton, Pennsylvania, a distance of 75 to 80 miles, arriving at New Stanton at about 3:30 p.m. Plaintiff was then assigned another load which he was to take from New Stanton to Bridgeton, New Jersey. Upon the completion of another mandatory pre-departure inspection, plaintiff and seven other drivers left the New Stanton terminal and began the trip to the same destination in New Jersey.

 Plaintiff testified that he was traveling south on Route 119 on a downgrade approximately 30 to 35 miles per hour and at about five truck lengths behind the truck driven by one David Williams, a fellow driver of plaintiff's. Upon approaching a slight curve in the highway, plaintiff attempted to apply the brakes. Clarke stated that he depressed the brake pedal but found that the brakes were not working. An attempt to slow the tractor-trailer by the use of the "trolley" brakes, which are the brakes on the trailer, also proved unsuccessful. Unable to make the curve, the truck left the highway, went over the shoulder of the road and onto an adjacent field, where the truck overturned and the plaintiff sustained serious injuries.

 Between the time the plaintiff departed from the New Stanton terminal and the occurrence of the accident on Route 119, he encountered no necessity to apply the brakes. During this short span of time and distance, it was necessary to decrease the speed of the vehicle, but Clarke accomplished this by downshifting the gears on the tractor and not by applying the brakes. *fn3" Plaintiff testified that before leaving the terminal the air pressure gauge registered 65 pounds, which in his opinion rendered the truck operable from the viewpoint of sufficient air pressure in the braking system.

 The plaintiff introduced testimony indicating that on June 23, 1969, he had owned the Brockway tractor for 18 days, having acquired it new through the aforedescribed lease arrangement with Landis and that during the period of time prior to the accident he had driven the tractor some 5,000 miles. It was testified by Clarke that he experienced no brake problems from the time of purchase until the accident on June 23, 1969.

 Defendant Brockway offered seven witnesses who principally testified as to the absence of brake problems from the time the Brockway tractor left the assembly plant in Courtland, New York, during its delivery to Philadelphia and then to Lawnside, New Jersey, and through the inspection processes, including the testing of the brakes following the repair of the tractor. Specifically, James Yonta testified that he drove the tractor in question from Courtland to Philadelphia, Pennsylvania, and experienced no trouble with the brakes. The truck was then placed under the control of William Butcher, who made several changes in the vehicle which were requested by the customer, and then personally drove the truck to the National terminal in New Jersey. Henry Harter, a National mechanic, testified that he had inspected the tractor immediately prior to its departure from the New Stanton terminal and found that it satisfied all the necessary safety and operational requirements of the ICC, including an inspection of the braking system. The deposition of Preston Frampton, National shop foreman, was introduced to establish that following the repair to the tractor, the vehicle was road tested and the brakes were found to be in perfect operating condition.

 Finally, David Williams, the driver of the truck that had preceded the plaintiff's along Route 119, testified that immediately prior to the accident Clarke signaled that he wanted to pass. Williams maneuvered his truck partially onto the right-hand shoulder of the road to enable Clarke to pass on Williams' left. Williams testified that, after the plaintiff's truck passed, he (Williams) blinked his headlights to indicate that there was sufficient space for Clarke to move back into the line of traffic in front of Williams. Plaintiff, in keeping with the custom of over-the-road truck drivers, blinked his rear flashing lights acknowledging his thanks for the courtesy extended by Williams in the passing maneuver. Williams stated that it was at this point in time that the plaintiff's truck left the road.

 The first issue raised by defendant in support of the respective motions is that plaintiff failed to prove by the preponderance of the evidence that the brakes in the Brockway tractor failed and that such failure proximately caused the accident.

 Section 402A of the Restatement of Torts 2d, adopted as the law of Pennsylvania in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), provides, in pertinent part:

"Special liability of seller of product for physical harm to user or consumer (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 ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold."

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