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May 28, 1974

Darol D. TAYLOR, a minor, by his guardian David A. Taylor

Bechtle, District Judge.

The opinion of the court was delivered by: BECHTLE

BECHTLE, District Judge.

 Plaintiff, Darol D. Taylor, commenced this diversity action to recover damages for injuries sustained when his right hand became enmeshed in the gears of an industrial machine known as a "continuous pebble mill." The above accident resulted in the amputation of Darol Taylor's right hand and approximately three inches of his wrist. The trial of the matter was bifurcated on the questions of liability and damages. At the close of a four-day trial on the issue of liability, the jury returned a verdict against the defendant, the manufacturer of the gears, and the third-party defendant, plaintiff's employer. After hearing testimony as to damages, the jury awarded the plaintiff $236,652. Both defendants have filed a motion for a new trial. Defendant Paul O. Abbe, Inc. ("Abbe"), has also moved for judgment notwithstanding the verdict.

 The following operative facts were adduced at trial:

 At the time of the accident, the plaintiff was 17 years old and had been an employee of Superior Zinc Company ("Superior Zinc") for about one month. Taylor's duties consisted of general maintenance and supervision of the area in which the pebble mill was located. He was specifically charged with the responsibility of feeding the conveyor belt, watching the valves, and assuring that the tanks did not overflow by adjusting the valves when necessary.

 Plaintiff testified that on the afternoon of April 13, 1970, he took a short break from his duties at the plant. He removed his work gloves and placed them on top of a railing which surrounded the pebble mill. Taylor was resting against the rail, facing the machine, as he peered out a window. As he began to return to work, one of the gloves fell on the ground between the railing and the pebble mill. The plaintiff testified that he bent over to pick up the gloves and almost simultaneously felt himself "being caught, being pulled." (N.T. 1-30) The injured party was unable to state precisely how his hand became caught in the in-running point of the gear mechanism. Frantic attempts to stop the machine by pulling on the conveyor belt proved to be of no avail. It was not until the plaintiff's entire right hand had become enmeshed in the gears that other employees heard his screams and finally managed to shut off the machine.

 As previously mentioned, the machine involved in this accident was called a "continuous pebble mill." Plaintiff's hand became caught in the in-running pinch point between two power-driven gears on the pebble mill. The original pebble mill had been in operation at the Superior Zinc plant for over 50 years prior to the accident and had been built and installed by another manufacturer. After a short period in which the mill was not in use, plaintiff's employer sought to place the machine back into operation. In order to accomplish the reactivation of the mill, the defendant manufacturer was contacted by Superior Zinc in connection with the replacement of various essential parts of the pebble mill. An agreement as to specifications and price was eventually reached and the defendant installed as replacement parts the main drum, the pinion gear, the ring gear, and the jack shaft. The total price of the pinion and ring gears, together with the other component parts manufactured and supplied by the defendant Abbe, was $4,965.

 The evidence established that at the time of the accident there was no protective guard on the pebble mill that would prevent a human limb from being caught in the nip point created by the meshing of the pinion gear and ring gear. The evidence did show, however, that the defendant Abbe manufactured a protective gear guard as a component part but that such a guard was available as optional equipment only. In the instant case, the manufacturer offered the guard to Superior Zinc at a price of $110. The offer for the guard was rejected by plaintiff's employer.

 Plaintiff's expert Paul K. Goldberg testified that, based on his experience working with pebble mills in general and his observation of the pebble mill in question, the component parts sold to Superior Zinc by Abbe were in a defectively dangerous condition due to the absence of a gear guard and an emergency switch in the immediate area of the gear mechanism. Defendant's expert stated that, if the gear guard manufactured by Abbe had been on the machine, the accident involving Darol Taylor would not have occurred.


 The principal contention raised by the defendant manufacturer in support of the post-trial motions is that plaintiff failed to introduce sufficient evidence as to how his hand became entangled in the gears. Defendant argues that the jury could have only resorted to guess or speculation with respect to the factual context of the accident in that plaintiff was not able to state exactly how his right hand got caught in the machine. The issue presented is whether the plaintiff introduced sufficient evidence from which the jury could reasonably conclude that the injury to his hand was proximately caused by the unreasonably dangerous condition of the pebble mill.

 It is well settled that the responsibility for determining whether the plaintiff has established a prima facie case of liability rests with the trial judge. Neville Chemical Company v. Union Carbide Corporation, 422 F.2d 1205, 1211 (3rd Cir. 1970); Denneny v. Siegel, 407 F.2d 433, 440 (3rd Cir. 1969). The trial court must determine as a minimum requirement of a prima facie case whether the plaintiff has presented sufficient facts for the jury to conclude reasonably that the preponderance of the evidence favors liability. Denneny v. Siegel, supra at p. 440; Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 153 A.2d 477 (1959). The Court is convinced now, as it was at the close of plaintiff's case, that sufficient evidence was introduced from which the jury could reasonably and logically determine the cause of the accident. It was not necessary for the jury to guess or speculate in regard to the operative or critical facts which precipitated the entanglement of the plaintiff's hand in the pebble mill. The direct testimony of the plaintiff established that he was standing close to the railing, that his work glove fell to the floor in close proximity to the machine and that as he bent down to retrieve the glove he suddenly felt his hand caught and being pulled into the gears. The jury was presented with a sufficiently definite factual backdrop upon which a finding of liability could logically be based.

 Defendant further contends that the act of reaching into the area dangerously close to the gear mechanism constituted a voluntary assumption of the risk as a matter of law. Assumption of risk is defined in the law as a voluntary and willing encounter of a risk of danger which is known, understood, and appreciated by the party against whom the defense is asserted. To effect the denial of recovery under the doctrine of assumption of the risk, the defendant must prove that the plaintiff subjectively and consciously appreciated the danger but, nonetheless, willingly chose to risk such danger. Green v. Parisi, 478 F.2d 313, 315 (3rd Cir. 1973); Elder v. Crawley Book Machinery Company, 441 F.2d 771, 773 (3rd Cir. 1971). The Court is fully aware that under some circumstances it is appropriate for the trial court to determine as a matter of law that the plaintiff voluntarily assumed the risk of injury. Colosimo v. May Department Store, 466 F.2d 1234 (3rd Cir. 1972). However, the facts of the case at bar dictated that the issue of assumption of risk be submitted to the jury.

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