O'NEILL v. United States

• Decision Date: 12 May 1969
• Docket Number: No. 17325.,17325.
• Citation: 411 F.2d 139
• Parties: Francis C. O'NEILL and Aetna Casualty & Surety Co. v. UNITED STATES of America, Appellee, v. AMBROSE-AUGUSTERFER CORPORATION, Third-Party Defendant, Francis C. O'Neill, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

411 F.2d 139 (1969)

Francis C. O'NEILL and Aetna Casualty & Surety Co. v. UNITED STATES of America, Appellee, v. AMBROSE-AUGUSTERFER CORPORATION, Third-Party Defendant, Francis C. O'Neill, Appellant.

No. 17325.

United States Court of Appeals Third Circuit.

Argued January 7, 1969.

Decided May 12, 1969.

Leonard Levin, Levin, Levin & Levin, Philadelphia, Pa., for appellant.

J. F. Bishop, Appellate Section, Civil Div., Dept. of Justice, Washington, D. C. (Edwin L. Weisl, Jr., Asst. Atty. Gen., Drew J. T. O'Keefe, U. S. Atty., Morton Hollander, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellee.

Before BIGGS, FORMAN and FREEDMAN, Circuit Judges.

OPINION OF THE COURT

FREEDMAN, Circuit Judge.

Francis C. O'Neill, a pipe fitter, was seriously injured while working at the United States Post Office Building at 30th and Market Streets, Philadelphia. He was employed by Ambrose-Augusterfer Corporation, an air conditioning subcontractor of Wark & Co., which was one of the prime contractors in the renovation of the building. He received workmen's compensation benefits from his employer's insurance carrier, Aetna Casualty Company.

O'Neill, joined by Aetna, brought the present action under the Federal Tort Claims Act¹ against the United States, charging that its negligence caused the accident. The United States denied negligence on its part, alleged that O'Neill was contributorily negligent and filed a third party complaint against his employer, Ambrose-Augusterfer Corporation, alleging that it was negligent and therefore liable to the United States either by way of contribution or indemnity.

The District Judge sitting without a jury, as required by 28 U.S.C. § 2402, made findings of fact and conclusions of law to the effect that under Pennsylvania law, which governs this case,² there was no negligence on the part of the United States, that plaintiff (O'Neill) was guilty of contributory negligence and his employer, Ambrose-Augusterfer, was negligent. Judgment accordingly was entered in favor of the United States on the plaintiffs' claim; and since the United States was absolved of responsibility, judgment was entered in favor of the third party defendant despite the finding of its negligence. In an addendum the District Judge made supplemental findings assessing plaintiff's damages at $98,345.17, to be effective in the event it should be held on appeal that plaintiff is entitled to recover damages from the United States. 276 F.Supp. 724 (E.D. Pa.1967).

On this appeal plaintiff carries the heavy burden of demonstrating that the District Judge's findings of fact that the United States was not negligent and that plaintiff was contributorily negligent are "clearly erroneous" under Federal Rule of Civil Procedure 52(a). If either of the two foundations for the judgment stands, the appeal must fail, for in Pennsylvania contributory negligence, no matter how slight, is a complete bar to recovery.³ Consideration of these questions necessarily leads us to the factual circumstances disclosed by the record.

I. THE FACTS

On September 28, 1962, O'Neill was directed by his foreman, Tobin, to drill a hole through the third floor of the Post Office Building, so that water pipes required for the new air conditioning equipment could be run to the second floor. The floor was made of concrete covered with wood. The hole was located alongside the wall of the building. On the other side of the hole, about 18 inches away from the wall and parallel to it, was a conveyor. To reach the hole O'Neill had to step over the conveyor, which was 18 inches high.

The conveyor, used for sorting mail, consisted essentially of metal rollers which were rotated by friction with a moving rubber belt on which they rested. In most sections of the conveyor the rollers could easily be lifted by hand from the belt on which they rested by the force of gravity. They could be moved vertically but not horizontally because they fitted into slots in the side of the conveyor. In some sections of the conveyor, however, where switching equipment was necessary in order to route mail onto connecting lines, the rollers were restrained from any vertical movement. These rollers were fastened in the slots and could not readily be lifted by hand from the belt. The difference in the fitting of the two types of rollers in the slots was not readily apparent to ordinary observation.

At the time of the accident O'Neill had removed the wood flooring and had drilled about halfway through the concrete floor with an electric drill when it struck something and "kicked". He was thrown off balance and as he extended his left hand to seek support it was caught between the roller and the belt of the conveyor. Unfortunately, the roller which pinned his hand was vertically restrained to accommodate switching equipment. Because the roller would not lift easily it took some time to release his hand and he suffered serious, permanent injury.

II. Liability of the United States

The District Judge concluded that the United States was not negligent because (1) there was no latent danger in the conveyor belt requiring a warning to plaintiff, and (2) neither plaintiff nor his employer made any adequate request that the belt be shut down while he was drilling the hole, although such a request would have been honored if it had been made.

(1) The District Judge's finding that neither O'Neill nor his employer requested any responsible post office official to shut down the conveyor belt while O'Neill was drilling the hole is amply supported by the evidence and therefore may not be disturbed.

O'Neill testified only that he asked his foreman, Tobin, to have the conveyor shut down. Tobin testified that he looked for the postal foreman on the third floor to ask for a temporary shutdown, but failed to find him and made the request to a postal clerk who happened to be standing nearby. This testimony fails to establish that a request was made to a responsible post office official. Moreover, even this inadequate account was impeached by Tobin's pretrial statement in which he had failed to mention a request for a temporary shutdown.

Obviously the conveyor system was expected to remain in operation, since the Post Office was in active use during the renovation work. Indeed, the Government's contract with Wark, the prime contractor, which was referred to in Wark's subcontract to Ambrose-Augusterfer, provided that during the work no Post Office functions would be interrupted and no Post Office equipment was to be shut down. The evidence makes it clear, however, that each of the various prime contractors had a liaison employee to handle these problems and that in practice temporary shutdowns of post office equipment were secured by requests to the designated post office official. Tobin testified that he himself had frequently sought and secured such shutdowns.

In these circumstances the District Judge was justified in concluding that the United States was not obliged to shut down the conveyor system, because there was no specific request made to a responsible post office official.

(2) O'Neill contends that the difference in safety between the fixed and the easily removable rollers, which was not readily apparent, constituted a latent danger which required notice to anyone working nearby.

The District Judge's findings, which in effect held that this difference in the two types of rollers did not render the conveyor inherently dangerous because of a latent condition, are not clearly erroneous. It is at least arguable that one who observed the conveyor system and did not distinguish any difference in the two types of rollers could reasonably conclude that all were dangerous and would be harmful to anyone who caught his hand in them. Indeed, O'Neill's testimony that he wanted the conveyor shut down when he began to drill lends support to the conclusion that its danger was obvious to him. The danger in the conveyor system therefore was not a trap which created a duty on the owner to give warning of its existence.⁴

The theory is now urged on us that the United States was negligent in failing to provide a guard or shield which would have prevented O'Neill's hand from being caught in the conveyor. The District Judge did not consider this theory of liability, apparently because it was not pressed in this form at the trial. The record shows that plaintiff's pretrial memorandum specifies as a ground of liability the failure of the United States to guard the machinery properly and that at the end of the trial plaintiff requested a finding of fact that the conveyor system was "inherently dangerous in that no protection was provided to prevent persons from coming in contact with" the moving belt and the rollers.

Aside from what was inherent in the description of the accident and in the photographs of the conveyor, the only evidence on the subject was the testimony of plaintiffs' expert, Miller, an engineering specialist in "static transportation". Miller suggested that a temporary shield of plywood or cardboard might have protected O'Neill while he was at work, but he qualified this statement by observing that since such a shield might have restricted O'Neill's freedom of movement, it might have created a danger greater than that it was meant to eliminate.

In urging this ground of liability, O'Neill refers for the first time to a Pennsylvania safety statute and the decisions which have imposed civil liability for its violation. The present statute is the Act of May 18, 1937, P.L. 654, § 2, as amended, 43 Purdon's Pa.Stat.Annot. § 25-2, which provides:

"(b) All belts, pulleys, gears, chains, sprockets, shafting, and other mechanical power transmission apparatus, stationary engines, electrical equipment, and apparatus shall be properly guarded to protect workers from injury.

"(c) All cranes, hoists, steam or electric shovels, plant railroads, and other apparatus or devices used for moving,

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