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Moodie v. Westinghouse Elec. Corp.

Supreme Court of Pennsylvania
May 21, 1951
367 Pa. 493 (Pa. 1951)


Argued April 13, 1951

Decided May 21, 1951

Negligence — Blower — Testing room — Circumstances — Contributory negligence.

In a trespass case, in which it appeared that while plaintiff, a machinery inspector for the United States Navy, was inspecting a high speed forced draft blower in defendant's testing room he was struck in the eye by a foreign non-metallic object; and plaintiff contended that defendant's negligence consisted of the improper design and construction of the testing room, with respect to the adequacy of the provisions made for taking off safely into the outer atmosphere the large volume of air forced from the blower at a great rate of speed; it was Held that the questions of defendant's negligence and plaintiff's contributory negligence were for the jury.


Appeal, No. 138, Jan. T., 1951, from judgment of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1942, No. 2605, in case of James Moodie v. Westinghouse Electric Corporation. Judgment affirmed.

Trespass for personal injuries.

The facts are stated in the opinion by GUERIN, J., of the court below as follows:

On October 8, 1941, plaintiff, a machinist by trade, was employed as a machinery inspector for the United

States Navy Department. As a part of his duty, he was sent to the plant of defendant company to inspect a certain high speed forced draft blower being manufactured by defendant for the Navy Department. He was required to make certain tests to determine whether or not the blower would cause undue vibration when operated at an overspeed of 25%. Prior to the accident, he had made some eight or ten previous similar inspections in the same testing room under like conditions.

The blower was placed in operation by defendant's employees and remained in operation a matter of several hours, after which plaintiff was summoned to make his tests. He entered the testing room and remained there for approximately ten or fifteen minutes examining the blower to satisfy himself as to the requirements of the Navy Department. At the conclusion of this period of time, the examination having been completed, he had made a half turn and was about to make a complete turn to leave the room when he was suddenly struck in the right eye by a foreign non-metallic object which caused him considerable pain. He left the testing room and was assisted to the dispensary where he received first-aid.

On the morning following the accident, plaintiff entered the Naval Hospital where he remained until December 4, 1941. He was re-admitted January 26, 1942 and discharged January 30, 1942. Meantime, in November of 1941, after attempts at treating the eye had failed, it was removed and a gold ball placed in the socket, with an artificial eye covering. He has a permanent condition of discharge and painful irritation.

At the time of the accident, plaintiff was 41 years of age and was receiving a salary of $2600. a year, which has been increased to $5445. a year. When the accident occurred, there were 35 or 40 inspectors, of

whom plaintiff was one, but at the time of the trial, this number had been reduced to 3. Plaintiff testified that he is subject to discharge at any time.

There was a verdict for the plaintiff in the sum of $25,000. Defendant filed a motion for new trial and for judgment non obstante veredicto. The motion for new trial was overruled conditioned upon plaintiff's filing a remittitur for all of the verdict in excess of $12,500., which was filed. The motion for judgment non obstante veredicto was refused and defendant has appealed to the Supreme Court on the grounds that the plaintiff was guilty of contributory negligence as a matter of law, and that there was no evidence of any negligence on the part of the defendant.

The blower was designed for the purpose of feeding air in a large quantity and at a great rate of speed into the blower chambers of destroyers. It consisted principally of two parts, one part, the turbine, was steam driven and was designed to operate at a rate of 250 horsepower in order to operate the blower end. The blower had the dual function of drawing air into the machine and then, through the use of the power generated by the turbine, to propel it out of the exhaust opening at great speed. The exhaust opening was rectangular in shape measuring 27 1/4 inches by 28 inches at the opening. At normal operation the blower attained a speed of 6350 revolutions per minute and discharged approximately 25,000 cubic feet of air per minute. At the over speed test which was being performed at the time of the accident, the blower was operated at 125% capacity, the revolutions per minute increased to 7938 and air was discharged through the opening at a rate of approximately 60 miles per hour.

The test room was a brick building adjoining the main shop. It was approximately 30 feet long, 25 to 28 feet wide, and 20 to 25 feet high. There was a large steel door in the wall leading from the main shop, and

in the opposite wall of the room there were two steel doors about 2 feet above the ground level. All doors were kept closed during the running of the tests. The only other opening in the room was that which formed a part of a duct, 24 inches in diameter, which extended from outside the building along the ceiling, and near the center of the room made a 90 degree turn where it was connected to a metal canopy which was hung at a height of about nine feet to twelve feet above the ground. The canopy was about 10 feet long and 5 feet wide thus covering only part of the room and not the entire path of air discharged from the blower when the test was made. It did not extend as far as the pit upon which the machine was being tested at the time of the accident.

The testing room contained four or six testing pits or blatforms, located about 4 inches above the floor. There were four or six of these mounts, arranged opposite each other, with two or three on each side and a ten feet wide aisle between them. When tested, one at a time, the machinery was mounted to one of these platforms. When mounted, it was approximately 4 feet above the floor, the top of the exhaust being approximately 4 feet 6 inches from the floor. The distance between the lowest part of the canopy and the upper portion of the exhaust end of the blower, according to the testimony of the plaintiff, was between five and six feet, and according to the testimony of defendant, was between three and four feet. The arm of the exhaust extended out into the aisle at a slight angle of any where from four to six degrees from the machinery toward the canopy, the object being to direct the air from the blower beneath the canopy in order that it might be discharged through the vent at the top.

At the time of the accident, the test was being conducted by employees of defendant, four of whom were present and one of whom has since died. Plaintiff had

no control over the test, his function being primarily to observe the vibration of the machine.

The testing room contained approximately 15,000 cubic feet of air while 30,000 cubic feet of air were discharged during the running of the test so that the cubic content of the room was exhausted, every 30 seconds of the over-speed operation.

There are two types of blowers, vertical and horizontal. The blower involved in this case is the horizontal type.

Plaintiff contended under the circumstances under which the test was being made the blower should have been so equipped with a duct physically attached to it that it would have carried the forced draft to the outer atmosphere, without diverting any particles of dust or foreign matter that might be in or near the path of the forced draft, to the danger of persons necessarily in the room. Defendant disputed this contention and asserted that under the instructions issued by the Navy Department and defendant, a horizontal type of blower was required to be operated without resistance, because if resistance were offered, the blower would not function at 25% over-speed and therefore a proper test could not have been made, and that the physical attachment of any duct directly upon the blower would have offered such resistance as would have made the test practically impossible.

In support of his position, plaintiff called as a witness a mechanical and electrical engineer with fifty years' experience. He testified that he had experience with blowers of all types and description and with the testing of similar blowers of various speeds and of fairly high speeds. He stated that because of the danger of the high speed air picking up various objects, it was standard practice in the industry to place a duct securely attached to the exhaust to carry the air away from the blower to a point where its velocity would

be spent. He said that such a duct could have been physically attached to the blower by making the metallic confines of the duct sufficiently larger in dimension than the discharge vent, so that there would be practically no resistance set up and the tests could have been performed. This witness testified further that in his opinion, the test room, because of the absence of a duct as described by him, was an unsafe place in which to conduct the tests.

Defendant's engineer testified that after the happening of this accident a new test house was erected by defendant in which the testing pits have ducts located directly above them, and not in the center of the room, so that it is not necessary to direct the forced draft at an angle from the discharge vent, but it now proceeds directly upward into the outer atmosphere.

Defendant's engineer's experience extended for very many years. He had designed the particular blower. He testified that with the requirements of the 25% overspeed it was physically impossible to attach a duct to this type horizontal blower, because of the resistance which would have been set up. He also stated that the conditions existing in the test room at the time of the accident were proper and adequate for such a test. This witness testified that the canopy was installed not for the purpose of taking out the air but to permit the escape of the heat caused by the blower discharge, the temperature of the room rising to 130 degrees during such test. Another employee of defendant stated that defendant tried to point the exhaust into the canopy to take out the air.

Defendant took the position that the plaintiff, having been familiar with the operation of such a test for a period of time prior to the happening of the accident, should have been aware of any danger attendant upon the performance of his duties. It also asserted that located throughout various parts of its

plant were posted certain warning signs, and that there were available several types of safety glasses issuable to the defendant's employees, one of which would have been available to plaintiff upon request to one of defendant's superintendents.

There was no requirement that those entering the test house should use glasses, and safety glasses had never been used by the plaintiff or by employees of the defendant prior to the happening of the accident though they have been used since that date.

These high speed tests had been going on for approximately a year prior to the happening of the accident; no accident of a similar nature had taken place.

As to defendant's first contention, the Supreme Court has repeatedly decided, that contributory negligence may be declared as a matter of law only when it is so clearly revealed that fair and reasonable persons cannot disagree as to its existence: Davenport, Trustee, et al. v. Pennsylvania Railroad Co., 364 Pa. 202. Applying this principle to the facts herein, contributory negligence cannot be declared as a matter of law.

Plaintiff is a machinist, employed at the time of the accident by the Navy Department as a machinery inspector. He is not a mechanical engineer. He had nothing to do with the operation of the blower. It was placed in position by defendant's employees, set in motion and so maintained by them for a matter of several hours before plaintiff was summoned to witness the overspeed test. All of defendant's employees, who were constantly conducting these tests, apparently considered the conditions safe, as did plaintiff, who had participated in eight or ten previous tests over a period of approximately one year. Neither they nor the plaintiff wore safety glasses prior to the accident to plaintiff, although everybody in the testing room

has worn them since. There were no warning posters in the testing room, and there was no requirement that glasses be worn by those taking part in such tests. There was not one word of testimony that defendant had ever made it known that there was any danger in the testing room such as would have required or have even suggested the wearing of safety glasses. Another Navy inspector testified that during two years that he worked at defendant's plant he was never given, nor had he ever seen, an order directing the wearing of glasses in the test room. One of defendant's witnesses, a tester, said that he had never worn safety glasses prior to plaintiff's accident, and he had never been directed to wear them. Nor had any of the other employees of defendant, worn safety glasses.

Here, then, was something which was generally supposed to be safe. Only a specially trained person could foresee that in a given case it might do damage. Plaintiff, an untrained person who did not foresee it, and who had no warning, cannot be held liable for the injury received by him. Seaboard Container Corp. v. Rothschild, 359 Pa. 51.

The issue of plaintiff's contributory negligence was submitted to the jury upon full and complete instructions by the trial judge. The verdict in plaintiff's favor is a finding of fact that plaintiff was not guilty of contributory negligence.

As to defendant's other contention, was there evidence that defendant was negligent? Plaintiff alleges that defendant's negligence consisted of its failure to provide reasonable, adequate and customary means of carrying off the forced draft of air into the outer atmosphere; that the canopy attached to the duct was located in such a position, several feet away from approximately one-half of the air vent, that the escaping air, in a volume of 30,000 cubic feet per minute, at a speed of one mile a minute, was permitted to diffuse

any particles of dust or foreign matter that might be in or near the path of the forced draft, thus causing a condition potentially dangerous to those required to be in the testing room.

In support of this allegation, plaintiff offered the testimony of a mechanical and electrical engineer who has practiced as such since 1901. He is a member of the American Society of Mechanical Engineers and of the American Institute of Electrical Engineers, and is the President of a company which has designed and built power plants and buildings throughout the United States and foreign countries. Defendant objected to his qualifications because he had never designed or tested a blower such as the one involved in this suit, operating at six thousand revolutions per minute. The objection was overruled, for the reason that such blowers are designed only by the Navy Department, and plaintiff's engineer was familiar with blowers turned up as high as five thousand revolutions per minute. He was experienced with the type of blower and gave a complete description of it and of its functioning.

If a witness "has any reasonable pretension to specialized knowledge on the subject under investigation he may testify, and the weight to be given to his evidence is for the jury: Ardesco Oil Co. v. Gilson, 63 Pa. 146; Stocker v. Schneider, 228 Pa. 149. 'The test applied must not set the standard of qualification so high as to exclude the only available kind of testimony ordinarily obtainable in such cases': White v. R. R. Co., 222 Pa. 534, 537. Whether the knowledge of the witness justifies the admission of his testimony is a matter for preliminary inquiry by the trial court, being largely a question within its discretion. . . .": McCullough v. Holland Furnace Co., 293 Pa. 45, 49.

An examination of the qualifications of plaintiff's expert witness reveals that he had more than "a reasonable pretension to specialized knowledge on the subject".

The trial judge held that his evidence was admissible, and in carefully worded instructions to the jury he left to them the determination of the weight it should give to the testimony of the experts called by both sides.

This witness, in answer to a hypothetical question containing all of the facts testified to by plaintiff as to the dimensions of the testing room, the construction, position and operation of the blower, its over-speed and amount of forced draft, and the means of carrying it off, testified that in his opinion the non-metallic foreign substance, about the size of two periods of the ordinary typewriter placed next to each other, was carried out with the air from the blower and struck plaintiff in the eye.

Plaintiff alleges in substance that defendant's negligence consisted of the improper design and construction of the testing room and test pits, with respect to the adequacy of the provisions made for taking off safely into the outer atmosphere the large volume of air being forced from the blower at the enormous rate of speed of one mile per minute. This was a "highly hazardous instrumentality", which imposed upon the defendant a correspondingly high degree of care on its part in creating and using it. Plaintiff's expert engineer testified that the means adopted by defendant for removing a potential peril were inadequate and improper, for the reasons stated by him as set forth above. Defendant's expert engineer expressed the opinion that proper care had been exercised by defendant, to guard against danger to those whose duty required them to be in the testing room in the vicinity of the blower. "This testimony, however, being oral, was for the consideration of the jury, and it was that tribunal which was properly charged with the responsibility of deciding whether the criticisms advanced by plaintiff were warranted, whether the alleged deficiencies were

such that defendant should have realized that they involved potential danger, whether they were too lightly brushed aside, and whether the final form given to the tank (testing room and apparatus) was adopted without sufficient care and caution which the situation demanded, or whether, on the other hand, defendant's testimony in regard to all these matters exonerated them (it) from the charge of negligence": Foley v. The Pittsburgh-Des Moines Company, et al., 363 Pa. 1, 12.

The verdict of the jury established that defendant was negligent, and that its negligence caused the accident. On the basis of the foregoing authorities, therefore, we refused defendant's motion for judgment non obstante veredicto.

Defendant appealed.

J. B. H. Carter, with him Guy W. Rogers, Jr. and Evans, Bayard Frick, for appellant.

James F. Masterson, with him G. Fred DiBona, for appellee.

The question of the defendant's negligence is indeed a close one. But, a majority of the members of the court who heard the argument of this appeal are of the opinion that the case could not properly have been taken from the jury. Consequently, the learned court below was correct in refusing the defendant's motion for judgment n.o.v. The judgment for the plaintiff is affirmed on the opinion of Judge GUERIN for the court en banc.

Judgment affirmed.

Summaries of

Moodie v. Westinghouse Elec. Corp.

Supreme Court of Pennsylvania
May 21, 1951
367 Pa. 493 (Pa. 1951)
Case details for

Moodie v. Westinghouse Elec. Corp.

Case Details

Full title:Moodie v. Westinghouse Electric Corporation, Appellant

Court:Supreme Court of Pennsylvania

Date published: May 21, 1951


367 Pa. 493 (Pa. 1951)
80 A.2d 734

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