Staley and Adams, Circuit Judges, and Garth, District Judge.
The United States of America appeals from a judgment in favor of Francis C. O'Neill for damages due to injuries he sustained while working in a Government building.*fn1 The United States filed a third-party complaint against O'Neill's employer, Ambrose-Augusterfer Corporation ("Ambrose"). Ambrose appeals from a judgment in favor of the Government requiring Ambrose to indemnify the United States for the damages awarded to O'Neill.
A proper understanding of the present posture of this case requires an account of its protracted history. The action was brought under the Federal Tort Claims Act.*fn2 As required by that Act, the case was tried before a district judge sitting without a jury. Findings of Fact and Conclusions of Law were made to the effect that there was no negligence on the part of the United States, that plaintiff O'Neill had been contributorily negligent, and that his employer, Ambrose, had been negligent and had caused his injuries. Judgment accordingly was entered in favor of the United States on plaintiff's claim; and since the United States was absolved of responsibility, judgment was entered in favor of Ambrose, the third-party defendant, despite the finding of its negligence. 276 F. Supp. 724 (E.D.Pa., 1967).
Plaintiff O'Neill appealed to this court, arguing that a Pennsylvania industrial safety statute had been violated and calling our attention to Pennsylvania decisions which have imposed civil liability for such a violation. Even though O'Neill had not urged the applicability of the statute prior to appeal, we viewed the case as one involving an expressed policy of Pennsylvania with regard to industrial injuries. Invoking our power under 28 U.S.C. § 2106 to dispose of cases before us in such manner "as may be just under the circumstances," we chose not to apply the rule precluding consideration of issues which are raised for the first time on appeal.
In addition, we found that the district court's conclusion that O'Neill had been contributorily negligent was based upon findings of fact which were conclusory.
Accordingly, the judgment was vacated, and we directed that on remand:
"* * * the District Court shall consider and make appropriate findings on the plaintiff's claim of liability against the United States because of failure to comply with the safety requirements of the Act of May 18, 1937, and the defendant's claim of O'Neill's contributory negligence. For this purpose it shall afford the parties an opportunity to present additional evidence." 411 F.2d at 146.
Upon remand, the case was retried, resulting in a judgment in favor of O'Neill and a judgment of indemnity on the third-party complaint against Ambrose. These appeals followed.
The factual situation out of which O'Neill's action for personal injuries arose was fully set forth in our earlier opinion by Judge Freedman. 411 F.2d 139 (C.A.3, 1969). Here we are concerned only with those issues raised with regard to the district court's actions following remand. We will, therefore, not restate facts unless they are germane to those issues.
Following remand, additional evidence was taken by the district court, and the evidence taken at the first trial was received in evidence as part of the second trial. The district court subsequently found that the United States had in fact failed to comply with the Pennsylvania safety statutes and that O'Neill's injuries were incurred as a result of the Government's violation of the standards established by the Pennsylvania Bureau of Labor and Industry. The United States contends, as it must, that these findings are "clearly erroneous" under F.R.Civ.P. 52(a) and therefore require a reversal of the judgment against it.
In discussing its finding that the Government had failed to comply with the Pennsylvania Safety Standard Act, the district court recognized that the provisions of the Act are not self-executing. The Supreme Court of Pennsylvania in Matulonis v. Reading R. R. Co., 421 Pa. 230, 219 A.2d 301 (1966), ruled that it is necessary that the state's Department of Labor and Industry promulgate regulations applicable to the basic conditions in question in order to place the Act in operation. After a careful review of the regulations pertinent to the Government's post office equipment and the testimony on behalf of the plaintiff by Mr. Oravecz, director of the bureau primarily responsible for setting standards and drafting safety regulations,*fn3 the district court concluded that rules had been promulgated that made the Act applicable in this case.
We agree with the district court's statement that the crucial issue is whether the regulations can fairly be said to apply to conveyor belts, specifically the post office conveyor belt where O'Neill sustained his injuries. The district court accepted as an established fact that the conveyor is a form of mechanical transmission of power and as such is embraced within the guidelines set forth in the Act.*fn4 This conclusion is, of course, vehemently disputed by the Government. The "clearly erroneous" test, however, requires that this court be convinced on ...