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March 21, 1975


Fogel, District Judge.

The opinion of the court was delivered by: FOGEL

FOGEL, District Judge.

 Before us for decision are the following issues: (1) sufficiency of the evidence with respect to the existence of a defect in the accused machine; (2) the quantum of evidence of foreseeability required for a proper finding of proximate cause; (3) excessiveness of the award of damages to plaintiff's wife; and (4) existence of factors, if any, which would dictate the grant of a new trial, should the motion for judgment n.o.v. be denied.

 The accident in question occurred on October 4, 1972, while plaintiff Kenneth Carpenter was assisting Clarence Horst and Thomas Padilione, both qualified mechanics, in the repair of a large earth-moving shovel. Mr. Carpenter's pants became caught in the nip-point -- the contact point between two rotating drums -- of a clutch set on the shovel. His leg was pulled through the drums, resulting in injuries which necessitated amputation from the knee down. This suit was brought by the injured plaintiff against the manufacturer of the equipment to recover monies over and above the workmen's compensation allowance he received from his employer, and by his wife for losses in her own right as a result of the injuries to her husband.

 After the verdict, defendant moved for judgment n.o.v. on the same grounds originally advanced in support of its motion for a directed verdict. The motion for a new trial was based upon the following contentions, all in addition to those urged in support of the n.o.v. judgment: (1) the verdicts were against the law; (2) the verdicts were against the evidence; (3) the verdicts were against the weight of the evidence; (4) the verdicts were contrary to our instructions; (5) the verdicts were excessive; and (6) we erred in submitting special interrogatories to the jury in the manner in which we elected to do so.

 Several of the grounds in support of the motions as originally filed were withdrawn by defendant at oral argument. Hence, the only n.o.v. and new trial issues now before us for disposition are as follows: (1) as a matter of law, did a 402A defect exist which justifies the verdict? (2) is the manufacturer responsible for the particular misuse of its product which is alleged to have caused the accident in the instant case? (3) is the award to the spouse so outrageous that it evidences bias by the jury, and therefore requires a new trial on the issue of damages to which she may be entitled? No complaint is lodged as to the amount of the award to Mr. Carpenter, provided we sustain the finding with respect to liability of Koehring to him. Moreover, because the trial was bifurcated, there is no contention that the amount of the damage awards demonstrates a prejudice by the jury in its findings with respect to liability, as the liability issues had been tried to a verdict first.

 Before reaching the merits of the motions, it is helpful to pinpoint the standards which must be applied by a trial court in ruling upon them. To grant a motion for judgment n.o.v., we must find as a matter of law that the plaintiff failed to present facts which could justify the jury's verdict. Neville Chem. Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 (3d Cir.), cert. denied, 400 U.S. 826, 27 L. Ed. 2d 55, 91 S. Ct. 51 (1970). "[The] motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment." 5A J. Moore, Federal Practice para. 50.07[2], at 2356 (2d ed. rev. 1966).

 A new trial motion calls upon the exercise of discretion by the trial judge, whose "duty is essentially to see that there is no miscarriage of justice." 6A J. Moore, Federal Practice para. 59.08[5], at 59-160 (2d ed. rev. 1973). That discretion is not unbridled, however. Only if manifest injustice will result, can we vitiate the jury's verdict. We may not substitute our own judgment for that of the jury, merely because we may have reached a different conclusion. Lewin v. Metropolitan Life Ins. Co., 394 F.2d 608, 614 (3d Cir. 1968), quoting Lind v. Schenley Indus. Inc., 278 F.2d 79, 90-91 (3d Cir.), cert. denied, 364 U.S. 835, 81 S. Ct. 58, 5 L. Ed. 2d 60 (1960).


 1. Motion for Judgment N.O.V.

 Plaintiffs claim that the defect was caused by the failure of the manufacturer to design and supply a guard over the nip point on the left-hand set of clutch drums. The accident, they allege, occurred as follows: a shaft broke on the shovel, which is known as the "505 Skooper"; the equipment had been manufactured by Koehring Company (Koehring), and was owned and operated by Bethlehem Steel Corporation (Bethlehem). Bethlehem sent two qualified mechanics, with Kenneth Carpenter as an assistant, to repair the Skooper, which was at the bottom of an open-pit mine. The work, which began at 7:00 A.M. and lasted throughout the entire day, involved removing the exterior cowling and various other pieces from the machine to gain access to two sets of clutch drums and the broken shaft beneath them. After removing the shaft with a chain hoist, a new shaft was installed, the clutch drums were replaced, the interior guard on the right nip point was replaced, and the two compression members -- steel "I"-beams used to support the shovel -- were set in place. The holes for pins to support the beams did not line up, so Horst and Padilione decided to start the Skooper's engine, and to use the hydraulic system to align the pieces. Immediately after the engine was started and the clutches were engaged, Carpenter moved forward because he understood that it was necessary for him to help the mechanics with the placement of the pins. It was this action on his part that resulted in catching his pant leg in the left clutch set, for which no guard had been designed or supplied; his leg was then drawn into the clutches.

 Viewing the evidence, as we must, most favorably to plaintiffs, we find that there was sufficient evidence to sustain the jury verdict. While design defects can present complex questions which lend themselves to subjective answers (see Henderson, Judicial Review of Manufacturers' Conscious Design Choices: The Limits of Adjudication, 73 Colum. L. Rev. 1531 (1973)), such problems were not present in this case. The perforated guard was certainly a feasible addition, as evidenced by the presence of that kind of guard over the other nip point. The cost of such a guard is minimal, approximately Thirty-five Dollars, particularly when analyzed in light of the cost of the machine itself -- Eighty-seven Thousand Dollars. The factors which govern the manufacturer's choice, therefore, were similar to those which are found in the usual tort case -- foreseeability of exposure to the nip point on the left side, the type of personnel who may be exposed to the left nip point, the circumstances surrounding such anticipated exposure, and the probable effectiveness of the protective guard in preventing accidents such as the one which occurred in this case.

 That the accident occurred during repairs to the Skooper, is not significant, in light of comment 1 to Restatement (Second), Torts § 402A (1965); the sweep of this section includes anticipated and foreseeable repairs of a product. We note that defendant at one point argued that comment 1 had not been expressly adopted by the Supreme Court of Pennsylvania. However, no case was cited by ...

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