Lambert v. PBI Industries

Decision Date22 November 1976
Citation366 A.2d 944,244 Pa.Super. 118
PartiesLynn K. LAMBERT v. PBI INDUSTRIES, a corporation, Appellant, v. BETHLEHEM STEEL CORPORATION v. COMMONWEALTH ASSOCIATES, INC., a corporation. Lynn K. LAMBERT, Appellant, v. P.B.I. INDUSTRIES, a corporation, v. BETHLEHAM STEEL CORPORATION.
CourtPennsylvania Superior Court

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.

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

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE VAN der VOORT and SPAETH, JJ.

JACOBS, Judge.

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 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, bases 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, 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. 1 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 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.' 2 In support of his theory, plaintiff introduced evidence that his 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.

I

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 inch weld which was specified and PBI concedes that no testimony of design failure was offered. PBI's experts testified that the weld was Not defective, not that it had faithfully followed a defective design.

PBI nonetheless argues that because the trial court charged on the duty of a fabricator to foresee secondary uses of the V-clips, the jury could have found either that the weld was defective Or that its design was defective and that if the latter was found Commonwealth would have Also had a duty to foresee the secondary use. We do not agree with PBI's conclusions concerning the theories presented. Because the proofs were devoted solely to the question whether the weld was defective, PBI's defense as to unintended use was necessarily limited to the theory that the weld it actually used was capable of standing up to supporting the rods but not to the use of pulling the sheets. There was no evidence that the 3/16th inch weld specified did not take into account the alleged secondary use and there was no evidence presented that a 3/16th inch weld was insufficient therefor. Consequently, the jury had no basis for concluding that the design of the weld was defective; it could have only concluded, consistent with the evidence, that the weld itself was defective. No basis for Commonwealth's liability having been shown, the compulsory nonsuit was proper.

The second issue raised by PBI is its contention that plaintiff Lambert did not carry his burden of showing that by custom and usage PBI had reason to foresee the actual use of the V-clips and that by custom and usage he was not contributorily negligent. The gist of PBI's claim on this point is its argument that the lower court should have declared, as a matter of law, that the ironworker's attachment of the come-along was a misuse of the V-clip, the dangers from which it was not obligated to provide against, and that plaintiff's failure to attach his safety belt rendered him contributorily negligent. The lower court concluded that sufficient facts were elicited at trial on these issues to justify submission of them to the jury together with proper instructions. We agree.

The plaintiff introduced the testimony of other connectors and members of the raising gang that they had been using the V-clips to attach the come-alongs for the week and one half preceding the accident and they testified that this was normal procedure. One witness with over twenty-eight years experience testified that this was the usual and customary practice and another ironworker with twenty three years experience stated that such a practice was customary. It was also shown, in an attempt to demonstrate that PBI should have known of the practice, that PBI was the erector of 20 per cent of the fabricated products it made. 3

The above facts were sufficient to cause reasonable men to differ concerning PBI's duty to foresee the harmful consequences which threatened plaintiff. Conduct is negligent if the harmful consequences could reasonably have...

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3 cases
  • Stapas v. Giant Eagle, Inc.
    • United States
    • Superior Court of Pennsylvania
    • December 23, 2016
    ...dissociated from the other questions it ought to stand as the final adjudication of the rights of the parties." Lambert v. PBI Indus. , 244 Pa.Super. 118, 366 A.2d 944, 956–957 (1976) (en banc ) (quoting 58 Am.Jur.2d New Trial, § 27 (1971) ).Id. at 23 (brackets omitted). Therefore, while we......
  • Heckman v. Federal Press Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 3, 1979
    ...could be utilized. See Wolf v. C. Schmidt & Sons Brewing Co., 236 Pa. 240, 245, 84 A. 778, 779 (1912); Lambert v. PBI Industries, 244 Pa.Super. 118, 137-38, 366 A.2d 944, 954 (1976) (allocatur denied); Havens v. Tonner, supra at 377, 365 A.2d at We recognize the distinction in Pennsylvania ......
  • Banohashim v. R.S. Enters., LLC
    • United States
    • Superior Court of Pennsylvania
    • September 24, 2013
    ...dissociated from the other questions it ought to stand as the final adjudication of the rights of the parties.” Lambert v. PBI Indus., 244 Pa.Super. 118, 366 A.2d 944, 956–957 (1976) ( en banc ), quoting58 Am.Jur.2d New Trial, § 27 (1971). In the case at bar, we conclude that the trial cour......

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