Appeal from judgment of Court of Common Pleas of Beaver County, Dec. T., 1965, No. 379, in case of Daniel Wayne Lambert and Matilda Lambert v. Pittsburgh Bridge and Iron Works.
James A. McGregor, Jr., with him Andrew L. Weil, and Egler, McGregor & Reinstadtler, for appellant.
Louis M. Tarasi, Jr., with him John Alan Conte, and Conte, Courtney, Tarasi & Price, for appellees.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Hoffman, J. Watkins, P. J., dissents.
[ 227 Pa. Super. Page 52]
This is an appeal from a judgment in favor of the plaintiff-appellee, Daniel Lambert, who was seriously injured when an industrial split-wheel owned by the defendant-appellant, Pittsburgh Bridge and Iron Works (hereinafter "P. B. & I."), violently separated striking Lambert in the head.
P.B. & I. operates a business in Beaver County, in the course of which it uses forklift trucks in the stacking and transporting of equipment and supplies. Upon these forklifts are what are known as "split-wheels", which may be physically described, as follows: the wheels are assembled in two parts. The outer wheel, which includes the flange, has attached to it five bolts, by which the inner wheel is attached. In order to remove a tire, it is necessary to deflate the tire, remove
[ 227 Pa. Super. Page 53]
the nuts and separate the two parts of the wheel. When installing the new tire, the deflated tire is placed on the inner wheel; the outer wheel is then placed on the opposite side of the deflated tire in such a manner as to permit the bolts to pass through the corresponding holes on the inner wheel. Nuts are then affixed to the bolts and the tire is inflated to a pressure of 100 pounds.
On April 15, 1965, P.B. & I. sent one of its forklift split-wheels to the Beaver Valley Tire Service, which was in the business of selling new tires, recapping used tires and doing general tire repair work. P.B. & I. and Beaver Valley had had a long-standing business relationship, and on this particular job, Beaver Valley was to install a new tire on the wheel. Robert McCandless, the owner of Beaver Valley, testified that he separated the wheel and removed the old tire. In so doing, he stated that the nuts and bolts "came off clean" and that he had no trouble separating the wheel. When McCandless was interrupted by a telephone call, the appellee herein, Daniel Lambert, who had been employed as a tire changer for approximately nine months prior thereto with Beaver Valley, continued the job. He placed a deflated new tire on the inner wheel and then proceeded to mount the outer wheel. He said that he had no difficulty placing the bolts and fastening the nuts by means of a four-way wrench. When the air pressure had reached 80 pounds, the wheel suddenly and violently separated, one portion of which struck him in the head and then in deflection carried to the ceiling approximately 14 feet above the floor, where it left an impression in the ceiling plaster.
This split-wheel was produced as an exhibit at trial, seven years after the accident. It was agreed that the condition of the wheel made it impossible to properly align the two portions of the wheel so as to fasten the
[ 227 Pa. Super. Page 54]
bolts and nuts adequately. The factual dispute arose out of the testimony of expert witnesses on each side who raised the question as to the point in time in which the defect arose.*fn1 At the conclusion of the case, the trial judge over the defendant's objection and repeated insistence that Section 388 of the Restatement of Torts (2d) was the law applicable to the case, charged the jury on the basis of Section 392 of the ...