We recall no instance in which Niagra's counsel attempted to mislead the jury into believing that the model was an exact replica of the mechanical foot pedal which was attached to the press when it was sold, nor did defendant's counsel mislead the jury into believing that the pressure required to depress the model foot pedal to the floor matched that which would have been required to depress the foot pedal which would have been on the machine had it not been removed and replaced with a pneumatic foot switch. To the contrary, Niagra's counsel utilized the model only to demonstrate the height to which the press operator was required to raise his foot in order to work the pedal and the distance the pedal had to be depressed in order to activate a revolution of the press.
The plaintiffs' third and final argument in support of their Motion For A New Trial is that we erred in the manner in which we charged the jury as to the effect of "substantial modifications" to the press after it left Niagra's control. See, e.g.., Hanlon v. Cyril Bath Co., 541 F.2d 343 (3d Cir. 1975). The plaintiffs assert that our charge was erroneous because we failed to specifically charge the jury that post-delivery modifications to an allegedly defective product will relieve the manufacturer of liability only where the modifications are a "superseding, intervening" cause of the plaintiff's injuries.
In Eck v. Powermatic Houdaille, 364 Pa. Super. 178, 527 A.2d 1012 (1987), the Pennsylvania Superior Court also faced the question of how a jury should be charged in a § 402A case as to the defense of substantial modification. The Superior Court in Eck concluded that the trial court had erred in charging the jury as to the effect of post-delivery alterations to an allegedly defective product, because it instructed the jury that any substantial change in the product would relieve the defendants of liability regardless of whether it was a superseding cause of the user's injuries. See also, Thompson v. Motch & Merryweather Machinery Co., 358 Pa.Super. 149, 516 A.2d 1226 (1986). As stated by the Superior Court, a manufacturer may be relieved of liability only if: (1) the product was substantially altered after it left the manufacturer's control; (2) the modifications were not foreseeable to the manufacturer; and (3) the changes to the product were a superseding cause of the user's injury.
Examining our charge as a whole, we do not believe that we erred in the manner in which we charged to the jury on this issue. While we admittedly did not utilize the "superseding, intervening cause" language urged by plaintiffs' counsel, we find that our charge sufficiently expressed the point that the jury could not find for the defendant simply because Robert Hoffman's employer had somehow modified the press; rather, the alteration would only relieve Niagra of liability under this theory if it were a substantial factor in bringing about the plaintiffs' injuries, i.e., the alteration created the defect which was the proximate cause of the plaintiffs' injuries.
Finally, as to the plaintiffs' Motion For Judgment N.O.V., we see no grounds to grant the plaintiffs' Motion. There are any number of bases, entirely supportable by the record, upon which the jury could have concluded that Niagra was entitled to a verdict in its favor. Hence, we deny the plaintiffs' Motion For Judgment N.O.V.
AND NOW, this 8th of February, 1988, upon consideration of the plaintiffs' Motion For New Trial or Judgment N.O.V., Doc. # 21, and the defendant's response thereto, Doc. # 23, IT IS ORDERED that the plaintiffs' Motion is DENIED.
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