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filed: December 10, 1982.


NO. 2085 PHILADELPHIA, 1981, Appeal from the order of July 3, 1981 in the Court of Common Pleas of Philadelphia County, Trial Division, at No. 2953 July Term, 1975.


Alan J. Davis, City Sol., Philadelphia, for appellant.

Lawrence D. Finney, Philadelphia, for appellees.

Spaeth, Brosky and Beck, JJ.

Author: Beck

[ 308 Pa. Super. Page 115]

The City of Philadelphia (hereinafter "City") appeals an order of the Court of Common Pleas of Philadelphia County which denied the City's motions for a judgment n.o.v. or a new trial and which entered judgment in favor of Andrew Mattox (hereinafter "Appellee") in the amount of two hundred and twenty thousand dollars ($220,000) plus interest as provided in Pa.R.C.P. 238. We affirm.

Our scope of review in such cases is clearly settled. In reviewing a motion for a judgment n.o.v., we must consider the evidence most favorable to the verdict winner and all reasonable inferences therefrom. Ditz v. Marshall, 259 Pa. Super.Ct. 31, 35, 393 A.2d 701, 703 (1978). "A judgment n.o.v. should be entered only in a clear case, and any doubts should be resolved in favor of the verdict." Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103 (1980).

In reviewing a motion for a new trial, we must consider all the evidence adduced at the trial to ascertain whether the verdict was manifestly against the weight of the evidence. Ditz, 259 Pa. Superior Ct. at 35, 393 A.2d at 703. "[T]he decision to either grant or deny a motion for new trial is within the sound discretion of the trial court and will be reversed on appeal only if the appellate court determines the trial court palpably abused its discretion," Myers v. Gold, 277 Pa. Super.Ct. 66, 69, 419 A.2d 663, 664 (1980), or committed "a clear error of law." Eldridge v. Melcher, 226 Pa. Super.Ct. 381, 387, 313 A.2d 750, 754 (1973), allocatur denied.

On December 3, 1973, Appellee, then an inmate at the House of Correction, was injured while working on the prison garbage collection detail. The facts surrounding Appellee's injury were well and succinctly summarized by the trial court*fn1 as follows:

[ 308 Pa. Super. Page 116]

[Appellee] was assigned to the garbage detail, requiring him to ride on a trash truck around the prison and at the city-owned Riverview Home. The standard procedure for loading trash was . . . : the driver, a correction officer, would stop the truck at a designated pick-up where inmates would dump garbage into the back of the truck. Some one [ sic ] would call to the correction officer, who would be in the cab of the truck (N.T. 62), to engage the power take-off (P.T.O.) (N.T. 356). This procedure could only be done when the truck was in neutral. (N.T. 319) After the trash was dumped, one of the inmates would operate a lever at the passenger's side of the truck, towards the rear, which would actually activate the [trash compacting] blade. (N.T. 61-62) Only when the P.T.O. was engaged could the blade be operated. A buzzer system was located at the rear of the truck for the purpose of signaling the driver when to engage the P.T.O. and when to turn it off. However, this buzzer was not operable on the day of the accident. (N.T. 63) Consequently, when the crew was finished at a stop, one of the inmates would have to yell to the driver to signal that they were ready to go. (N.T. 120) Upon receiving such notice, the driver would then disengage the P.T.O. and drive on.

The rear of the truck, where the mishap occurred, had three prominent features. First was the loading or hopper sill, about two to four inches wide, against which the blade came in contact when the compactor was in operation. Second, about three inches below the loading sill, was a four inch ledge or "lip," formed by a piece of structural steel known as the "T." This piece, when placed on its side, had been welded onto the truck after the vehicle was purchased by the City. Finally, there was a bottom step below the license plate, approximately nine inches below the 'T' bar ledge . . . .

On the date in question, the accident occurred at approximately 9:30 a.m. at the truck detail's last stop, the Riverview paint shop (N.T. 64). [Appellee] had emptied

[ 308 Pa. Super. Page 117]

    the last of the trash into the hopper and had operated the compactor blade to pack this garbage into the truck (N.T. 64). [Appellee] then resumed his position on the back of the truck, standing on the hopper sill, in anticipation of returning to the House of Correction. Instead, the compactor blade was activated again, catching the tip of [Appellee's] left foot between the blade and the hopper sill. As a result, all of the toes on that foot were severed . . . .

On appeal the City's first argument is that Appellee should be denied recovery because his injury was in part occasioned by his own contributory negligence.*fn2

"'It is well settled that where a person has a choice of two ways, one of which is perfectly safe and the other subject to obvious risks, and voluntarily chooses the latter and is injured, he is guilty of contributory negligence." Strother v. Binkele, 256 Pa. Super.Ct. 404, 415-16, 389 A.2d 1186, 1192 (1978) (citations omitted); Claytor v. Durham, 273 Pa. Super.Ct. 571, 417 A.2d 1196 (1980).

As was stated in Gregorius v. Safeway Steel Scaffolds Co., 409 Pa. 578, 584, 187 A.2d 646, 649 (1963), working conditions must be considered together with other evidence in determining the question of contributory negligence . . . : "In determining the standard of conduct of one who is injured in the performance of his employment, the working conditions and all of the circumstances incident thereto, including his obligation to do his job, must be considered . . . ."

Lambert v. PBI Industries, 244 Pa. Super.Ct. 118, 131, 366 A.2d 944, 950-51 (1976), allocatur denied.

At trial Appellee testified that the three inmates assigned to the garbage detail*fn3 would customarily ride from one

[ 308 Pa. Super. Page 118]

    garbage collection site to another on the loading sill at the rear of the trash truck, the precise location in which Appellee received his injury. Appellee stated that the inmates could not stand on the "T" bar ledge at the rear of the truck because the ledge was too narrow to permit secure footing. In addition, Appellee contended that the inmates could not stand on the bottom step below the "T" bar ledge because the "T" bar ledge extended beyond the rear of the truck body and caused anyone standing on the bottom step to assume an awkward jackknife position in order to prevent the protruding ledge from bruising his shins.

In support of this latter contention Appellee offered the expert testimony of Dr. James Currie, associate professor of mechanical engineering at Villanova University, who had examined scale drawings*fn4 of the trash truck as it originally appeared when purchased by the City and as it appeared when in use at the time of Appellee's injury after the truck had been structurally altered by the City.

Dr. Currie explained that the City had made two significant modifications of the truck's original rear design: (1) the addition of a "T" bar ledge and (2) a change in the bottom step. In discussing the effects of these modifications Dr. Currie stated:

In my opinion, this whole thing is a . . . defective design . . . .

If, for example, this [bottom step] were to be a step, as any step on a ladder would be, it's inclined the wrong way.

You've got to step with your feet up underneath and you've got a . . . horizontal bar ["T" bar ledge], sticking back into your knees.

Steps are not built that way. Steps are built inclined the other way.

[ 308 Pa. Super. Page ...

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