Ucci v. Keane

• Decision Date: 16 January 1961
• Parties: Leonard D. UCCI v. John R. KEANE, individually and trading as Contractors Tool Company, Defendant-Appellant, and Morris Wilson Company, Additional Defendant.
• Court: Pennsylvania Supreme Court

167 A.2d 147

402 Pa. 467

Leonard D. UCCI v. John R. KEANE, individually and trading as Contractors Tool

Company, Defendant-Appellant, and Morris Wilson Company, Additional Defendant.

Supreme Court of Pennsylvania.

January 16, 1961.

Thomas Raeburn White, Jr., White & Williams Philadelphia, for appellant.

Wilderman & Markowitz, Bank & Minehart, Thomas Z. Minehart, Maurice A Bank, Melvin Alan Bank, Philadelphia, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO BENJAMIN R. JONES, COHEN, BOK, and EAGEN, JJ.

EAGEN, Justice.

This appeal is from the entry of judgment on a verdict for plaintiff which followed the lower court's decision overruling original defendant's motions for judgment non obstante veredicto and for a new trial. The appeal is predicated solely on alleged error by the court in denying the motion for judgment n. o. v.

On October 26, 1956, plaintiff, Leonard D. Ucci, was engaged in the performance of his duties as a sheet metal mechanic on a job involving the installation of air conditioning ducts in a building then being built by the Chrysler Corporation in Newark, Delaware. In the course of this operation it became necessary to attach to and suspend from the structural steel members of the plant flat bars of steel, in the trade referred to as 'hanger straps', to which, in turn, were to be attached joined sections of the duct assembled on the floor below. Used for the purpose of appending the hanger straps to the structural steel was a power tool, named the 'Drive-it 330' and, in the trade, called simply (but appropriately) a gun. Its ammunition, however, was a pin which was propelled through an eight and a half inch barrel following the discharge of a cartridge which was fired by the squeezing of a trigger. When thus shot, this pin would become embedded in the steel and its threaded end 'would be sticking out' therefrom and over that end would be placed punched holes in the hanger straps which were then secured to the structural steel by a nut or bolt.

At approximately 10:00 or 10:30 A.M. on the day in question, plaintiff pulled the trigger and the pin, for the first time in plaintiff's and his foreman's experience with the gun's usage, completely penetrated the half-inch steel into which it had been fired. It was finally retrieved from plaintiff's sleeve, but only after it had passed through his right forearm. This lamentable turn of events transpired when plaintiff, left-handed, and more than twenty feet in the air over the plant's floor, wielded the gun in his left hand and used his right hand and arm, on the other side of the steel into which he was firing, for support while in a position which necessitated same. It would appear from the record that plaintiff's right arm was not, at the moment of the firing, in the path of the projectile but, rather, that because of the great recoil of the gun his entire body was caused to shift, thus bringing the supporting arm into the ultimate path, but unintended course, of the fired pin.

In this trespass action brought by Ucci against the party who had sold the 'Drive-it 330' and the cartridges therefor to plaintiff's employer, the jury returned a directed verdict in favor of the additional defendant (plaintiff's employer) and a verdict in favor of Ucci against the vendor of the tool in the amount of $7,600.

In passing upon the motion for judgment non obstante veredicto, the testimony must be viewed in the light most favorable to plaintiff, in whose favor the verdict was returned, resolving all conflicts therein in his favor, and giving him the benefit of every fact and inference of fact, pertaining to the issues involved, which can reasonably be deduced from the evidence. Shaffer v. Baylor's Lake Association, Inc., 1958, 392 Pa. 493, 141 A.2d 583; Coradi v. Sterling Oil Company, 1954, 378 Pa. 68, 105 A.2d 98.

The light with which the testimony must be so viewed must emanate from the lamp of impartiality which, while focused on the scale of justice, shows a weight in the measurement of which natural sympathies can play no part. Ours in the function of determining whether, in a given case, a basis exists from which actionable negligence can be said to have arisen. We find no such basis in the matter now before us.

The instrument in question had been used for some time previous to October 24, 1956, by plaintiff's foreman. Being dissatisfied with its performance, he 'called the office up' (apparently the office of his employer) and 'told them (he) didn't want to use it in the field (and) to bring the old one (a 'Ramset') back again.' This was done and the 'Drive-it 330' was returned either to the seller or to the manufacturer. In any event, about a week later, two representatives, one each from the seller and the manufacturer, appeared on the job site with the gun and 'wanted to know what was wrong.' It is obvious that the foreman was afraid to use it. Its great recoil was the cause of his concern because the four inch square shield on the muzzle of the gun, instead of remaining flush with the object against which it was placed before firing, had, with the pulling of the trigger, recoiled or pushed back. But it is plain that the fear the foreman entertained, that of a threatened ricochet of the pin, never materialized. His...