No. 537 Philadelphia 1980, Appeal from Order of the Court of Common Pleas of Luzerne County, Civil Action at No. 224 of 1976.
Ralph E. Kates, III, Wilkes-Barre, for appellants.
Daniel Flannery, Wilkes-Barre, for appellee.
Spaeth, Hester and Cavanaugh, JJ.
[ 283 Pa. Super. Page 96]
This appeal is from an order denying a motion for judgment n. o. v. or new trial. The action is for personal injury and was tried before a jury. Appellants argue 1) that the lower court erred by failing to find as a matter of law that appellee was precluded from recovery because of contributory negligence and assumption of the risk; 2) that they were unfairly prejudiced by the court's admission into evidence of a photograph of appellee's injury; and 3) that the verdict was excessive.
In considering a motion for judgment n. o. v. we must view the evidence, together with the inferences that may be drawn from it, in the light most favorable to the verdict winner, Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973); Moyer v. Ford Motor Co., 205 Pa. Super. 384, 209 A.2d 43 (1965). Viewed in this light, the evidence may be stated as follows:
On the day of the accident appellee was employed by his brother as a crew leader at a construction site. Cement, which had been ordered from the company owned by appellant Donald Rinehimer, was delivered to the site in a truck driven by appellant Earl Rinehimer. The cement was to be used for footers for a garage that was being built about 50 or 60 feet back from a road. The garage site was at a higher elevation than the road, and the driveway from the road to the site had not yet been built. When the cement truck proved unable to back up the hill, it was agreed that a small bulldozer operated by appellee's brother would be connected by a chain to the truck in the hope that with the addition of the pulling power of the bulldozer the truck
[ 283 Pa. Super. Page 97]
would make it up the hill. Blocks were placed in front of the truck's rear wheels, and appellee and two others were stationed around the truck to remove the blocks once the truck started to move. Appellee testified that when the truck made a slight movement uphill he reached in to remove a block but all of a sudden the wheel began to spin in a forward direction, crushing his hand between the wheel and the block. Appellee argued to the jury that this sudden forward spin of the wheel could only have been the result of the truck driver's negligently putting the truck into forward rather than reverse gear. Consistent with this theory, appellee's brother testified that the truck moved forward with such force that the front of the bulldozer he was operating was pulled into the air. Appellant Earl Rinehimer testified that at no time did he put the truck into forward gear; he said the truck moved forward when he released the brake. It was, of course, the responsibility of the jury to choose between these conflicting versions of what happened, Brandon v. Peoples Natural Gas Co., 417 Pa. 128, 207 A.2d 843 (1965), and it is apparent that it chose appellee's version, albeit by a vote of 10 to 2.
The question for us, then, is whether the lower court should have found as a matter of law that appellee was either contributorily negligent or had assumed the risk of his injury, given that the immediate cause of the injury was appellant Earl Rinehimer's negligently putting the truck into forward rather than reverse gear.
A plaintiff may not be found contributorily negligent unless it appears that he engaged in conduct that was both negligent and a legal cause of his injury. Thompson v. Goldman, 382 Pa. 277, 114 A.2d 160 (1955). Appellee argues that he was not negligent in using his hand to remove the block because, as one of appellants testified, it was standard practice to pull such a block out by hand. It is true that evidence that a worker has conformed to the standard practice of his trade is an indication of due care, Gregorius v. Safeway Steel Scaffolds Co., 409 Pa. ...