Before LUMBARD, Chief Judge, and MOORE and SMITH, Circuit Judges.
The Lummus Company appeals from a judgment entered upon a $146,926 verdict for the plaintiff in a diversity action in the United States District Court for the Southern District of New York. The appeal turns on whether there was sufficient evidence to support the jury's finding that Lummus was negligent and that its negligence was the proximate cause of Lawrence Iacurci's death. As we find that the evidence, under governing Pennsylvania law, was not sufficient to support the jury's verdict, we reverse the judgment for the plaintiff and direct that judgment be entered in favor of the defendant Lummus Company.
Lummus was retained by the Beryllium Corporation, a producer of beryllium and beryllium products, to design and construct a new plant at Ashmore, Pennsylvania. Lummus did not itself manufacture the equipment for the plant but was responsible for its design and selection. One item of equipment, and the immediate cause of Iacurci's death, was a skip hoist - a bucket on an inclined track - used to transport a mixture of beryllium and other chemicals between two operations in the plant.
At the lower end of the track is a pit, 8 feet long, 6 feet wide and 4 feet deep, where the bucket is loaded; at the other end, some 10 feet above and 5 feet to the side of the pit, the bucket is emptied into a briquette-making machine. Beryllium is a highly toxic material. In order to prevent contamination of the plant, the skip hoist machinery is enclosed, and the pit itself is roofed with steel plates, leaving an opening just large enough for the bucket to pass through. The pit may be entered only by removing some of the plates, and a person working there must wear a dust respirator, glasses and gloves.
No one is in the pit during normal operations; the skip hoist and other machinery are remotely controlled from an instrument panel, known as a Thayer control panel. The jury could find, however, that Lummus should have anticipated that someone would go into the pit twice a week to lubricate the machinery and also that it would be necessary to go into the pit in order to obtain samples of the mixture. Such samples would be required only in calibrating the machinery which measured out the chemicals and presumably would be taken only infrequently.
Lubrication of the skip hoist seems not to involve any particular danger.To take a sample from the bucket, however, a workman must bend over it so that his body is between it and the roof of the pit. Iacurci was working in this position when the bucket was accidentally put in motion, crushing him against the steel plates.
The skip hoist is controlled by three switches, one on the Thayer control panel and two elsewhere. All three must be turned on in order to activate the machinery, and each switch can be padlocked in the off position. However, Lummus seems to have taken no steps to call the locking device to Beryllium's attention beyond sending it the manufacturer's general instructions, and warning tags rather than locks were supplied when the controls were installed.
The warning tags bore the words "Do Not Operate" in large letters. Prior to the accident Beryllium had put into effect safety regulations requiring that employees attach a tag to the switch controlling equipment on which they were working, and it instructed its employees generally in the use of the tags. In addition, appropriate posters were displayed in the plant. There was no direct evidence that Iacurci was instructed as to the use of the tags, and there even was dispute as to whether the safety regulations by their terms applied to a laborer such as he. However, the undisputed testimony of Robert Mensinger as to Iacurci's statements just prior to the accident, quoted below, appears conclusively to establish at least that Iacurci was aware of the tagging-out system.
The accident occurred on September 28, 1957. Lummus then had only clerical employees at the plant. The skip hoist had been turned over to Beryllium approximately one month earlier, and Beryllium had accepted the entire plant by September 20. During the shakedown period, Beryllium had experienced some difficulty in attaining the proper propor tion of chemicals in the mixture. Iacurci, who was a laborer unassigned to any permanent department, was directed by Simon Morana, a supervisor, to remove the contents of the skip hoist for analysis. Iacurci proceeded to remove the plates covering the pit and descend into it.
Mensinger was employed by Beryllium as a lab technician at the time of the accident. He testified that just prior to the accident he had seen Iacurci leaning over the skip hoist bucket and had inquired whether the machinery had been tagged out. Iacurci replied, "Oh, hell, yeah, it must be." Mensinger was not satisfied, however, and he told Iacurci, "Wait a minute, I want to go over and double-check the switch." He started off for the main control panel but he was delayed on the way by a request to attend to some other business.
At the same time two other employees, Anthony Kasarda and William Hill, were working under the supervision of John Heffner on the briquetting device.It was necessary for them periodically to activate the skip hoist, and Heffner, unaware that Iacurci was working in the pit, gave Kasarda and Hill permission to turn it on. When the skip hoist jammed, they discovered that Iacurci had been pinned between the bucket and the metal top of the pit. He was rushed to a hospital but was dead on arrival.
On the record before us, there can be no doubt that Beryllium was negligent, and the jury so found in answering one of the court's interrogatories. However, this suit was not brought against Beryllium*fn1, and the only question to be decided is whether Lummus should be held liable for Iacurci's death.
As we view plaintiff's contentions in the light of the evidence, they offer two general theories as to Lummus' negligence. The first is that Lummus was negligent in designing the skip hoist and controls. This theory was given to the jury in some detail on special interrogatories.They found Lummus negligent in designing the equipment, but of the five subquestions relating to the specific manner in which the design was faulty, they answered only one. They found that the design should have permitted removal of the bucket's contents without requiring a workman to put his head over the bucket*fn2 In view of the court's instructions, the jury's failure to answer the other subquestions must be inter preted to mean that they found that defendant's negligence had not been established in those other respects.
A second theory for recovery is that Lummus was negligent in failing to instruct Beryllium in the use of the locking device. None of the interrogatories dealt directly with this but, since plaintiff's counsel made timely objection to that omission, we must consider whether the verdict in favor of the plaintiff could have been supported by findings under this theory.
We hold that, as a matter of law, Lummus was not required to design the pit so that a workman could stand upright beside the bucket. We also hold that, even if it was negligent for Lummus not to call the locking device to Beryllium's attention, this omission was not a cause of the accident and therefore is no basis for imposing liability. This suffices to dispose of the case, and we need not consider the jury's findings on the issues of intervening cause and contributory negligence, all of which were favorable ...