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decided: September 22, 1975.


Appeal from judgment of Court of Common Pleas of Westmoreland County, Jan. T., 1971, No. 886, in case of Leonard V. Agostino v. Rockwell Manufacturing Company, a corporation, and Greensburg Lumber & Mill Company, a corporation.


James R. Silvis, with him O'Connell, Silvis & Godlewski, for appellant.

Christ C. Walthour, Jr., and Patrick R. Riley, with them Michael P. Yeager, and Kunkle, Walthour and Garland, and Costello & Berk, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J.

Author: Spaeth

[ 236 Pa. Super. Page 437]

This appeal is from an order denying appellant's motion to remove a compulsory non-suit. The action was initiated in trespass and assumpsit, but before trial appellant elected to proceed solely on the theory of strict liability enunciated in § 402A of the Restatement (Second) of Torts.

The Act of March 11, 1875, P.L. 6, § 1, as amended June 3, 1971, P.L. 118, No. 6, § 1 (§ 509(a)(25)), 12 P.S. § 645, allows an order for compulsory non-suit to be entered when plaintiff's evidence is insufficient to maintain his cause of action. It provides:

"Whenever the defendant, upon the trial of a cause in any court of common pleas of this commonwealth, shall offer no evidence, it shall be lawful for the judge presiding at the trial to order a judgment of non-suit to be entered, if, in his opinion, the plaintiff shall have given no such evidence as in law is sufficient to maintain the action, with leave, nevertheless, to move the court in banc to set aside such judgment of non-suit."

Once a compulsory non-suit has been entered, the plaintiff may not commence a second action upon the same cause

[ 236 Pa. Super. Page 438]

    of action. Pa. R.C.P. 231(b). In determining the propriety of the entry of a compulsory non-suit, this court must regard the evidence in the light most favorable to the appellant, and he must be accorded the benefit of all reasonable inferences arising from the evidence. Forry v. Gulf Oil Corp., 428 Pa. 334, 237 A.2d 593 (1968); DeLio v. Hamilton, 227 Pa. Superior Ct. 581, 308 A.2d 607 (1973); Jones v. Spidle, 213 Pa. Superior Ct. 81, 245 A.2d 677 (1968), appeal after remand, 446 Pa. 103, 286 A.2d 366 (1971).

So regarded, appellant's testimony may be summarized as follows. During the month of November, 1969, appellant purchased from appellee Greensburg Lumber & Mill Company a power saw manufactured by appellee Rockwell Manufacturing Company. At the time, appellant was employed as a manager of the Modern Tea Room in Greensburg, Pennsylvania, and his duties included remodeling the restaurant building. Appellant was familiar with power saws since he had used them for approximately twenty-five years in various carpentry jobs. The Rockwell saw that appellant had purchased was constructed so that after the completion of a cut, a telescopic guard would be automatically released from the housing, covering the blade and thereby preventing the user from being cut. On December 16, 1969, appellant went to the restaurant to finish the work he had begun on a second floor wall. He had owned the saw for approximately one month and had used it approximately ten times; no one else had used it. On this specific day, he was going to use the saw to cut 2" by 8" boards. He plugged in the saw, checked the telescopic guard to make sure it was operating properly, and cut two boards. After each cut he put the saw on a bench behind him. On the third cut, appellant finished severing the board, but as he attempted to put the saw on the rear bench the blade grabbed his trousers and cut deeply into his thigh. He dropped the saw on the floor. As he moved away to keep the saw

[ 236 Pa. Super. Page 439]

(which was still running) from cutting his feet, he noticed that the telescopic guard was not covering the blade but was "jammed" in the housing.

In addition to his own testimony, appellant introduced the testimony of two medical doctors and a chiropractor who testified concerning the extent of appellant's injury. Appellant also attempted to use an expert witness, Emerson Venable, who had examined the saw and was prepared to testify as to the defects in its design and manufacture. The trial judge, however, sustained appellees' objections and refused to let Venable testify.

At the conclusion of appellant's case, each appellee moved for compulsory non-suit, and the trial judge granted the motions. Appellant then filed a motion to remove the non-suit and a motion for a new trial. The court en banc denied both motions, and this appeal followed. Appellant claims that the entry of the non-suit was improper, and that the trial judge erred in refusing to permit the proposed expert witness to testify.

In Webb v. Zern, 422 Pa. 424, 427, 220 A.2d 853 (1966), our Supreme Court expressly adopted Section 402A of the Restatement ...

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