John R. Walters, Jr., Janet N. Valentine, Thomson, Rhodes & Grigsby, Pittsburgh, for appellant.
Joseph R. Rygiel, Uniontown, Randall J. McConnell, Jr., Dickie, McCamey & Chilcote, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 241 Pa. Super. Page 131]
This appeal presents the question of whether appellant introduced sufficient evidence to have the issue of liability based on § 402A of the Restatement (Second) of Torts (1965)*fn1 submitted to the jury. The court below
[ 241 Pa. Super. Page 132]
held that appellant's evidence was deficient and entered a compulsory non-suit in favor of appellees at the conclusion of appellant's case. We disagree with this decision and remand for a new trial.
Appellant's complaint in trespass alleged inter alia the following facts: On August 12, 1968, appellant purchased from Null Ford Sales, Inc., (hereinafter referred to as "Null") a new 1968 truck manufactured by Ford Motor Company (hereinafter referred to as "Ford"); seventeen days later the Ford truck suddenly caught fire so as to damage and destroy the interior of the cab, the engine, and certain other parts of the truck; the fire resulted from a defective condition in the truck that existed at the time it was sold by Ford and also from the negligence of Ford's employees and Null's employees.*fn2
After several subsequent pleadings were filed, the case proceeded to trial where the following testimony was introduced into evidence: Kenneth W. Emory testified that he was employed by appellant on the day the truck caught fire. He was one of two men who operated the truck that day. On the day in question, he and another of appellant's employees were at the site of a strip mine drilling holes in which dynamite was later to be placed. The
[ 241 Pa. Super. Page 133]
truck was used to transport the drill from hole to hole. Somewhere between the tenth and fifteenth holes that were drilled that day the drill broke. Emory and his partner then decided to leave the area and travel to town in a pickup truck (not the Ford) to obtain the part needed to fix the drill. Emory testified that when they left the area the truck engine was turned off, its doors were closed, the windows were up, there was no one else in the area, and there was no evidence of any fire at that time. Approximately one hour after they were gone, they received word over their two-way radio that the Ford truck was on fire back at the mine. When they returned, Emory noticed that the Ford truck was in the same position as it had been when they left and the doors were still closed. However, the cab of the truck was burned to such an extent that the glass had melted. Emory did not have occasion to examine under the hood of the truck to determine the extent of the fire in that area. However, Emory did notice that certain jumper cables kept behind the seat in the cab had not come in contact with a reserve battery that was kept on the floor board in the cab and was still covered. Emory's testimony also made it clear that the Ford truck had been functioning properly prior to the fire.
Wayne Layhue, Emory's working partner, was the next witness to testify for appellant. His testimony reaffirmed the fact that the truck had been operating normally that morning and that there was no evidence of any fire when he and Emory departed for town. According to Layhue, the truck had been turned off a half hour before they had left for the parts. Layhue substantially made the same observations testified to by Emory. Layhue also added that he did not do anything to cause the fire.
J. R. Cornell, owner of appellant corporation, testified that he had purchased the Ford truck new from Null and that it had only 35 miles on its odometer when it caught fire. He ...