Hastie, Smith and Seitz, Circuit Judges. Seitz, Circuit Judge (dissenting).
WILLIAM F. SMITH, Circuit Judge.
This action for personal injury sustained in an industrial accident was brought by the plaintiff against the defendant Miehle-Goss-Dexter, Inc. (Miehle), the manufacturer of an offset printing press installed in the plant of Edward Stern & Company, Inc. (Stern), the plaintiff's employer. The complaint alleged that the defendant was negligent in several respects but particularly in its failure to design and manufacture the press "with proper and adequate safety devices." With leave of the court the defendant filed a third-party complaint in which it alleged that the cause of the accident, either in whole or in part, was the negligence of Stern. In the trial of the action against Miehle the only evidence was that offered on behalf of the plaintiff; Miehle rested its defense on the same evidence.
The present appeals are from judgments entered on jury verdicts in favor of the plaintiff against Miehle and in favor of Miehle against Stern. The plaintiff seeks reversal and remand of the action for a new trial solely on the issue of damages. The defendant Miehle seeks reversal and remand of the action for either the entry of judgment in its favor or a new trial. The appeal of the third-party defendant Stern is not now before us, argument thereon having been held in abeyance. (No. 15641).
The briefs submitted on this appeal evince a marked difference of opinion between the parties as to the exact manner in which the accident occurred. This difference is apparently ascribable to the conflicting inferences justifiably permissible under the proofs offered by the plaintiff. However, on this appeal we are required to accept that version of the accident which accords with the evidence and inferences viewed in the light most favorable to the plaintiff. Tennant v. Peoria & P.U.Ry. Co., 321 U.S. 29, 35, 64 S. Ct. 409, 88 L. Ed. 520 (1944). We may not reweigh the evidence merely because it seemingly gives support to inconsistent inferences; it is the function of the jury, and not the court, to resolve such inconsistency. Ibid. The only facts relevant to the issues raised in these consolidated appeals can be briefly summarized as follows.
The plaintiff had been in the employ of Stern for approximately thirteen years and on the day of the accident held the position of assistant pressman. At that time he was engaged with a pressman in the operation of a press, which had been manufactured and installed by Miehle. He was instructed by the pressman to remove a "hickey"*fn1 from a lower cylinder which was not equipped, as were the upper cylinders, with a safety bar or other protective device; this cylinder customarily rotated at a speed of approximately 65 to 100 revolutions per minute. Intending to flick the "hickey" from the rotating cylinder with the heel of his hand,*fn2 the plaintiff stood on a slightly elevated platform facing the press. As he reached forward he fell, catching his right arm between the cylinder and a structural member of the press.*fn3 His arm below the elbow was so badly crushed as to require amputation.
The plaintiff urges reversal of the judgment on the grounds that the court below erred first, in its refusal to grant his motion for severance of the third-party claim, and second, in certain of its instructions to the jury. However, the main thrust of the plaintiff's argument is directed against the damage award in the amount of $50,000, which he here maintains was inadequate. The specifications of error must be separately considered in light of the argument.
The motion for severance of the third-party claim was made at the close of the plaintiff's evidence and after the denial of Miehle's motion for a directed verdict in its favor. It then appeared that Miehle intended to offer no evidence in defense of the main action but would go forward on its claim against Stern. The plaintiff contends that the denial of his motion was error under the circumstances of this case but with this we cannot agree. A motion for severance, such as was made here, is addressed to the sound discretion of the trial court and the denial thereof cannot be regarded as erroneous in the absence of a clear showing of abuse. There is no such showing here. We have examined the record and are convinced that the action of the court did not adversely affect the substantial rights of the plaintiff.
Pursuant to the request of Miehle, and over the plaintiff's objection, the court read to the jury selected provisions of the Pennsylvania Health and Safety Law of 1937, 43 P.S. §§ 25-2 and 25-6. It appears from its language that section 25-2 imposes a responsibility only on an employer covered by the statute, such as Stern. Since Miehle sought recovery against Stern on the theory of the latter's negligence the section was applicable, but only in the third-party action. The broad language of section 25-6 imposes responsibility on "any person," including employer, employee, or both. However, under the evidence in this case the section was applicable only in the third-party action.
It appears from the record that the pertinent provisions of the said Act were read to the jury without any explanation as to how they were to be applied in the determination of the factual issues. We are of the opinion that absent such an explanation the instructions as given did not correctly relate the law to the issues and were therefore erroneous. Pritchard v. Liggett & Myers Tobacco Company, 3 Cir., 350 F.2d 479, 486 and the cases therein cited, cert. den., 382 U.S. 987, 86 S. Ct. 549, 15 L. Ed. 2d 475. However, since there has been no showing of prejudice to the substantial rights of the plaintiff, the error must be disregard as harmless. FED.RULES CIV. PROC., rule 61, 28 U.S.C.A.; Palmer v. Hoffman, 318 U.S. 109, 116, 63 S. Ct. 477, 87 L. Ed. 645 (1943); Slatinsky v. Bailey, 330 F.2d 136, 141 (8th Cir. 1964).
Finally, the plaintiff argues that the jury verdict was adversely influenced by the cumulative effect of the trial errors, and this, he maintains, is reflected in the allegedly inadequate award of damages. This circuitous argument is based solely on conjecture as to the basis of the award. It is apparent that the amount of damages did not meet the plaintiff's expectations but this is not the test of adequacy.
The plaintiff offered testimony as to the nature and extent of his injury, the temporary and permanent effect thereof, his past and prospective loss of earings, the impairment of his earning capacity, and medical expenses incurred and to be incurred. The significance of this testimony was adequately explained to the jury in a comprehensive charge which embodied seven specific requests for instructions on the issue of damages. There is nothing in the record to indicate that the jury failed either to follow the instructions of the court or to fairly evaluate the evidence. We have considered the evidence and find that the amount of the award was neither inadequate nor excessive but was well within permissible limits.
At the close of the evidence the defendant moved for the direction of a verdict in its favor; this motion was denied. A motion for judgment notwithstanding the verdict and, in the alternative, for a new trial, was similarly denied. The defendant here urges reversal on the same grounds argued in support of the said motion. Several of the arguments here advanced by the defendant appear to be predicated on a view of the evidence most favorable to it, contrary to the established rule by which we must be guided on this appeal.
The defendant maintains that the plaintiff assumed the risk of an obvious danger and was therefore guilty of contributory negligence as a matter of law.*fn4 The defendant argues that for this reason the trial court erred in the denial of its motion for a directed verdict as well as its motion for judgment notwithstanding the verdict. The question for decision is whether the evidence, viewed in the light most favorable to the plaintiff, was such as to warrant either the direction of a verdict or the entry of judgment notwithstanding the verdict. The question is one which must be decided under federal law. Woods v. National Life and Accident Insurance Company, 347 F.2d 760, 768 (3rd Cir. 1965).
The question of contributory negligence is usually one of fact for determination by the jury. It is one of law for decision by the court only in a very clear case in which the evidence is such that there is no room for fair and reasonable men to differ as to the conclusion to be drawn. Brough v. Strathmann Supply Co., 358 F.2d 374, 377 (3rd Cir. 1966) and the cases therein cited; Rinard v. YBH Sales and Service Co., 328 F.2d 959 (3rd Cir. 1964). Where, as here, the evidence is reasonably susceptible of inconsistent inferences, a jury question is presented. Ibid. As heretofore pointed out, it is the function of the jury to resolve the inconsistency. The ...