Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1968, No. 3460, in case of Diann J. McDonough, Administratrix of the Estate of James Joseph McDonough, Deceased v. United States Steel Corporation, defendant, and C. J. Langenfelder & Son, Inc., additional defendant.
James H. McConomy, with him Kathleen A. Merry, and Reed, Smith, Shaw & McClay, for appellant.
Allan H. Cohen, with him Gatz, Cohen, Segal & Koerner, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.
[ 228 Pa. Super. Page 271]
This is an appeal from an order of the Court of Common Pleas, Allegheny County, denying appellant United States Steel's motions for judgment n.o.v. and for a new trial.
Plaintiff's decedent was employed by the Langenfelder Co. as a machinery operator. Langenfelder was an independent contractor of U. S. Steel at an iron ore processing plant in Saxonburgh, Pennsylvania. Langenfelder's responsibility under the contract involved the stockpiling of iron ore when delivered to the plant, and the recovery of the ore when needed in the plant.
The ore arrived by railroad car and was loaded into giant earth moving machines called "Euclids" which were supplied by Langenfelder and were capable of hauling 40 tons of ore. The Euclids were then driven to an area designated by U. S. Steel where the ore was piled. In order to pile the ore, the operators had to drive onto the pile and release the ore as they traveled along the top of the pile.
Because ore was available only on a seasonal basis, stockpiling of considerable amounts of ore was required during the summer months. In depositing ore on the top of the pile, and in order to make maximum use of the area used for piling, the Euclid drivers were required to spread the ore evenly across the top of the pile so that the pile would not peak and thus limit its height. To do this, the Euclid operators had to drive within 1 1/2 to 2 feet of the edge of the pile while depositing the ore. At times, the piles reached heights of two hundred feet.
During peak periods of ore shipment, the stockpiling operations were conducted on an around-the-clock basis. Euclid operators testified that visibility during the night shifts was very poor, and that the edge of the pile was practically indiscernible. Other than the headlights of the Euclids, which were of the same intensity
[ 228 Pa. Super. Page 272]
as those of an automobile, there was no other source of artificial lighting to illuminate the pile. The headlights, while providing illumination in front of and behind the vehicle, provided no lighting to the sides of the vehicle where the operators had to "run the edge." There were shadows over the pile and smoke from the plant frequently drifted over the pile making visibility even worse. The ore had a tendency to slide, causing the edge of the pile to sag and break, making the line to be driven uneven. Appellee's expert, a safety engineer, testified that lighting on the Euclids was inadequate for the job to be performed, and that accepted safety provisions for a job of this nature required the use of elevated floodlights.*fn1
Appellee's decedent was employed by Langenfelder as a Euclid operator. On the night of August 28, 1968, decedent was assigned to work the edge of a 40-50 foot high ore ...