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decided: October 16, 1989.


Appeal from the Order of the Superior Court, at Nos. 1533 and 1668 Philadelphia, 1985, dated January 7, 1987, reversing the Order of the Court of Common Pleas of Philadelphia County, at No. 3944 May Term, 1980, entered May 24, 1985, and remanding for entry of judgment n.o.v. Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Nix, C.j. and Stout, former Justice, did not participate in the decision of this case. Larsen, J., files a dissenting opinion in which Papadakos, J., joins.

Author: Zappala

[ 523 Pa. Page 3]


This appeal presents a single issue: whether Superior Court exceeded the scope of its review when it reversed the trial court and directed entry of judgment n.o.v. in favor of Eaton Corporation. 361 Pa. Super. 137, 522 A.2d 52.

Harold Wenrick, a mechanic first class employed by Cerro Metal Products Company in Bellefonte, Pennsylvania, was killed while he was engaged in repairing an extrusion press at the Cerro plant. The press operates by taking large cylinders of heated brass, called billets, and pushing them through a container, forcing the malleable brass through openings of various dimensions. The tubes or rods that are produced are then used in the manufacture of brass products. A hydraulic loader lifts the billets into position to be forced through the press. The billet loader must then retract to permit passage of the ram, which pushes the billet through the container. On the day of the fatal accident, Harold Wenrick was standing beneath the billet loader, which was in its fully extended position, and was crushed when the loader retracted.

Nancy Wenrick brought this action, as administratrix of her husband's estate and on behalf of herself and her children, against Schloemann-Siemag Aktiengesellschaft (SMS AG), the manufacturer and designer of the press, Schloemann-Siemag, Inc. (SMS Inc.), the corporate successor

[ 523 Pa. Page 4]

    to Feller Engineering Co., which had been SMS AG's representative in the United States when the press was ordered and constructed, and Eaton Corporation, successor to Cutler-Hammer, Inc., the supplier and designer of the electrical control system of the press.

The action was framed in three counts -- strict liability, negligence, and breach of warranty. Prior to trial, the plaintiff negotiated a settlement with SMS AG and SMS, Inc., and executed a joint tortfeasor release as to them. These parties remained in the case, however, and litigated several issues, including their comparative liability, the decedent's contributory negligence, the amount of damages, and the additional claims by and against Eaton. After all the evidence had been received, by agreement of all parties a directed verdict was ordered dismissing SMS, Inc. The plaintiff also withdrew the breach of warranty claim. The jury's verdict was against both SMS AG and Eaton on the two remaining counts; in the negligence count, the jury assigned 65% of the liability to SMS AG and 35% to Eaton.

Eaton filed post-trial motions, including a motion for judgment n.o.v., which were denied by the trial court sitting en banc. On appeal, Superior Court reversed the order denying Eaton judgment n.o.v., as to both the strict liability and the negligence counts, and remanded for entry of such judgment in Eaton's favor.

It is agreed that the proper scope of review for an appellate court examining a denial of judgment n.o.v., according to the longstanding rule, is whether, reading the record in light most favorable to the verdict winner and granting him the benefit of every favorable inference, there is sufficient competent evidence to support the verdict. Wenrick asserts that the Superior Court, though acknowledging this rule, exceeded its authority under this standard and ignored evidence that supported the verdict, relying instead on evidence that supported the defendant's position.

Though no direct evidence was presented as to why the billet loader retracted, circumstantial evidence, based on

[ 523 Pa. Page 5]

    which mechanisms had the capacity to cause the retraction and where people were located at the time of the accident, supported the plaintiff's theory that a switch, normally tripped by the ram when it reached a certain point in its progress, was inadvertently triggered by a workman descending a pair of steps into the service pit beneath the press. The plaintiff's expert testified that the switch was a part of the electrical control system for the press designed by Cutler-Hammer. It was his opinion that the absence of a guard to cover the actuating part of the switch "was a defect in design and manufacture as installed and as used." He also testified that, in his opinion, in accordance with accepted engineering practice Cutler-Hammer had a duty to warn SMS AG about the danger posed by the location of the unguarded switch above the steps.

Wenrick argues in this appeal that the evidence adduced at trial and inferences that may be drawn from that evidence support the conclusions that the electrical control system design supplied by Cutler-Hammer was defective, and that Cutler-Hammer ought to have warned of the danger, in the manner suggested by her expert ...

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