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decided: November 22, 1976.


Appeal from the Order of August 20, 1975, denying Judgment N.O.V. and denying a New Trial on the issues of liability at No. 86 and granting a new trial as to damages only at No. 97, of the Court of Common Pleas, Civil Division, of Allegheny County at No. 1589 July Term, 1973. No. 86 April Term, 1976. No. 97 April Term, 1976.


Joseph M. Zoffer, Martino, Ferris & Zoffer, Raymond G. Hasley, Rose, Schmidt & Dixon, Eric P. Reif, Pittsburgh, for appellant at No. 97 and appellee at No. 86.

Thomas J. Reinstadtler, Egler & Reinstadtler, Pittsburgh, for appellant at No. 86 and appellee at No. 97.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring and dissenting opinion.

Author: Jacobs

[ 244 Pa. Super. Page 123]

This is an action for personal injury suffered on July 20, 1972 when plaintiff Lynn K. Lambert fell from a side sheet of a coal hopper which he was engaged in erecting in the course of his employment as a structural iron

[ 244 Pa. Super. Page 124]

    worker. As a result of his fall, plaintiff severely injured his left elbow. Plaintiff Lambert initiated the instant action on May 9, 1973 by filing a complaint in trespass against P.B.I. Industries (PBI), the fabricator and welder of the coal hopper's components. PBI subsequently joined Bethlehem Steel Corporation (Bethlehem), plaintiff's employer, and Commonwealth Associates, Incorporated (Commonwealth), the designer of the components, as additional defendants.

On November 20, 1974, following a jury trial, a verdict was returned in favor of plaintiff Lambert in the amount of $500,000.00 against defendant PBI and additional defendant Bethlehem. A compulsory non-suit was granted by the trial court with respect to additional defendant Commonwealth. PBI thereafter filed motions for judgment n. o. v. and for a new trial. The court below denied PBI's motion for judgment n. o. v. but granted a new trial limited to the issue of damages, based on its determination that the verdict was excessive.

Cross-appeals to this Court were filed by PBI and Lambert. The latter contends that the lower court should not have granted a new trial and that the jury's verdict should be reinstated. PBI alternatively argues that it should have been granted judgment n. o. v. and that it was error to grant a new trial limited to the issue of damages. We have carefully reviewed the briefs, the opinion of the lower court and the record and will affirm the order appealed from.

At the time of the accident, Lambert was performing his duties as a connector and, with other employees of Bethlehem, was assembling and connecting metal sheets, which had been fabricated and welded by PBI, to form four sloping sides at the bottom of a coal hopper being erected at the Bruce Mansfield Power Plant, Shippingport. Plaintiff had been a member of a raising gang which was erecting coal hoppers for the power plant for a week and one half before the accident. As a connector,

[ 244 Pa. Super. Page 125]

    the plaintiff's tasks involved pulling the four metal sheets (hopper or bunker sheets) of the coal hopper together by attaching a chain-like device called a come-along, which works like an auto jack, to a rachet on one end and a V-clip on the other. The come-along was used to pull the bottom of the 1,600 pound sheet into position.

The sheet from which plaintiff fell was secured at the top and the other three sheets that made up the hopper had been previously pulled into position and secured. While using the come-along in the above manner plaintiff was standing with his heels on the V-clips. As plaintiff was inspecting the pulled-in sheet to insure that it had been drawn flush at its bottom with the other sheets the V-clip to which the come-along had been attached separated from the hopper sheet, allowing the sheet to swing outward and causing plaintiff to fall some 12 to 15 feet onto a safety plank.*fn1 The V-clips, upon which plaintiff was standing and to which the come-along was attached, were one inch wide with two inch legs and had been welded to the sheets by PBI.

Plaintiff's theory of negligence and defendants' defense necessarily revolved around PBI's attachment of the V-clips to the hopper sheet. Plaintiff's trial theory was that PBI's fabrication and welding of the sheets and the V-clips was defective. PBI joined Bethlehem based on an allegation of its negligence as the erector of the hopper and as plaintiff's employer. Commonwealth was joined on the theory that the weld on the V-clip was negligently designed by it.

It was established at trial that the intended purpose of the V-clips was to hold light metal rods, wire mesh and gunite as a covering for the bunker sheets. The specifications provided by Commonwealth called for a 3/16th inch

[ 244 Pa. Super. Page 126]

    thick weld to accomplish the attachment of the V-clips to the hopper sheets for this purpose.

PBI disclaimed liability on the theory that plaintiff's use of the V-clips for standing upon and for pulling the sheets into place was an abnormal use which was unintended and was a use which it had no duty to anticipate. Plaintiff, on the other hand, maintained that although his use was not one for which the V-clips were primarily intended, PBI should have reasonably anticipated plaintiff's use as an "other use" or "secondary use."*fn2 In support of his theory, plaintiff introduced evidence that his

[ 244 Pa. Super. Page 127]

    use of the V-clips was a customary and usual practice in erecting coal hoppers of the type involved in this case.

PBI's appeal to this Court is predicated on five separate errors it alleges were made by the court below in denying its motion for judgment n. o. v. and refusing to grant it a new trial generally. The fifth of these addresses the propriety of the lower court's granting of a new trial limited to the issue of damages. Plaintiff Lambert's appeal is addressed solely to PBI's fifth issue. In his cross-appeal plaintiff lists four objections to the lower court's conclusion that the verdict was excessive and that a new trial on damages was warranted. We will discuss this issue in Part II hereof, but will first consider the issues raised by PBI in its appeal which are not the subject of cross-appeal by plaintiff Lambert.


PBI's first claim is that the lower court erred in granting a compulsory non-suit in favor of Commonwealth. The record reveals that Commonwealth offered no evidence in the case, see F. W. Wise Co. v. Beech Creek R. R. Co., 437 Pa. 389, 263 A.2d 313 (1970), and that neither plaintiff nor the other defendants offered evidence tending to show negligence on the part of Commonwealth. Plaintiff's case was directed to showing that his injury resulted when a defective weld broke loose from the hopper sheet; no evidence was produced to show that if Commonwealth's specifications had been followed the V-clip would not have broken loose and no evidence was presented as to what would have constituted a sufficient weld. To the contrary, plaintiff's evidence was that a 1/16th inch weld was used rather than the 3/16th ...

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