Patricia A. Hollinger, Administratrix of the Estate of Germaine S. Hollinger, Deceased v. Wagner Mining Equipment Company, a Division of Paccar, Inc

ALDISERT, Before HIGGINBOTHAM SLOVITER, Circuit Judges. OPINION OF THE COURT SLOVITER, Judge. Circuit I.

Issue This appeal is an from the of sum- defendant, mary judgment in favor of the Wagner Mining Equipment (Wagner). Co. diversity In this action seeks dam- decedent, ages for the of her Ger- death (Hollinger), maine who S. 27, 1977 May underground killed on at an operated mine by Corp. Bethlehem Mines (Bethlehem) Morgantown, Pennsylvania, being by scooptram1 operat- after struck by employee, ed another Bethlehem Irvin Hartz. The was manufactured by Wagner opera- put in 1969 into by year tion November Bethle- hem. court, scoop- derground As defined the district “A Min mines.” tram, (load-haul-dump) ing Equipment also as known an LHD 895 n.1 unit, trackless, profile powered (E.D.Pa.1981). is a low diesel transport vehicle used to earth ore in un- claim, entries, numbered, of which were

Plaintiff’s which evolved in its side three 03,02 east, present during discovery, form is that west from and More than scooptram was sold in an unsafe entry condition 50 feet east was another small entry 402A of explosive defined section the Restate- in which was located an (Second) storage ment Torts2 To because was not box. the farthest east was the with an automatic valve from which tank water the scrubber at the time of its sale. scooptram moved for of the was filled. Across the judgment, contending (i.e. essentially entry tunnel from to the south prove that undisputed entry) drainage manway. the facts the was a water alleged did Hollinger’s assign defect not cause It was practice a common to three work, granted summary death. persons production The district court to in one drift. judgment finding Wagner, genu- to that no Hollinger helper drilling and his were ine issue exists as to the fact material blasting oversized chunks of ore which had “the approach- decedent saw and heard the placed entry. The third ing scooptram,” and therefore that “the Hartz, employee, scooptram operator, presence or absence of or audible visual drawing was muck from the 01 and 02 device, whose sole function would have point it dumping entries and at a west of been to alert the decedent that the scoop- Hollinger helper the 03 his entry. left tram coming, was could not have caused the entry the 03 and walked east in the di- Hollinger Wagner accident....” v. Min- entry rection and the water drain- ing Equipment F.Supp. 899 age manway directly located across the tun- (E.D.Pa.1981). The court held in the alter- entry. roughly nel from the 01 At same native that if even causation could be estab- time, Hartz noticed the scrubber tank lished, there liability imposed could be no scooptram empty. was In order to the manufacturer 402A(l)(b) under section tank, proceeded refill the he towards the (Second) of the Restatement of Torts be- valve, water approximately located 102 feet cause operative Bethlehem had removed the entry. east the 01 As he was proceeding manual horn with which the scooptram was tunnel, Hollinger east in the Hartz saw sold, originally thereby effecting a “sub- standing at the entrance the water drain- change” stantial scooptram’s in the condi- age manway right side the tunnel tion. at Id. 900-02. We find that summa- entry. the 01 across from testified Hartz ry judgment on either of these grounds was Hollinger scoop- turned to face the inappropriate on the record before the dis- tram, that he saw on Hollinger’s trict court and remand. helmet, and that such a was turn in accord- practice. Holling- ance with standard mine II. stepped drainage er then into the water

Facts manway. sighting, At time this The following facts are dispute. point not in scooptram was at a between the 02 accident, At the Hollinger entries, time of the approximately and and 03 100 to 150 his helper, Rump, working were in the away “607 feet from the entrance the water East Drift” drainage manway. Bethlehem The was Production along Hartz, mine operating who moving was approximately per five miles the scooptram. The diagram in the Hollinger record hour. Hartz was unable to see of this portion of the drift shows a drainage again main the entrance to the manway wide, tunnel at least 10 feet proceeded tunnel, off north as he further down the provides part: (a) engaged 2. Section 402A in relevant the seller is in the business selling product, such a (1) any product One who sells in a defec- (b) expected it is does reach the unreasonably dangerous tive condition to the change user or without substantial consumer property subject user or consumer or to his in which is sold. condition liability physical thereby harm caused Pennsylvania adopted has section 402A. Webb consumer, to the ultimate user or or to his Zern, 422 Pa. 220 A.2d 853 property, if due to the was of an fact drivers seat absence automatic located left large scoop on the side and the could not have caused accident “because right obscured his vision of the side approach- the decedent saw and heard the passed vehicle. As he 01 entry, Hartz scooptram.” ing scoop felt dragging primary finding basis for was the consequently lifted the bucket a few inches apparent court’s inference that since there proceeded to the Upon water valve. was evidence that was aware of reaching valve, the water Hartz looked scooptram’s approach shortly before the Hollinger’s body back and saw lying in the accident, up he remained aware of it until drift. deposition, impact. moment of At his Hartz testified

III. passing entry, the 03 he saw A. entry across from the 01 and he saw him Summary Judgment acknowledge turn and the scooptram’s ap- of Rule 56 the Federal Rules proach. However, of Civil there was also testimo- provides Procedure may trial court uncontradieted, ny, apparently that the dis- enter summary judgment pleadings, “if the scooptram tance between Hollinger depositions, interrogatories, answers to point at this was 100 to 150 feet. Weik file, together admissions on with the affida Dep. at Hartz testified that he was vits, any, if show that is no genuine there traveling at no than per more five miles issue as to any material fact and that the time, 34-35; hour at Dep. at Hartz moving party is judgment entitled to a aas thus, least 14 20 at to seconds must have matter of law.” We have characterized elapsed between time sighting “ of summary judgment as ‘a drastic reme Therefore, the time of impact. even if ”, dy’ and have made clear “that courts are Hartz’ Hollinger establishes that any to resolve doubts as to the existence scooptram was aware of the when it was genuine issues fact against moving away, 100 to 150 feet it fails to establish parties.” Marshall, v. Ness 660 F.2d 517 at (3d 1981) conclusively Hollinger Cir. (quoting was aware of Tomalewski Co., State Farm Life Insurance 494 F.2d scooptram immediately the im- before 882, 1974)). Moreover, pact. “[infer ences to be drawn from the underlying may suggest Other evidence a different facts contained in the evidential sources point impact inference. The exact submitted to the trial court must be viewed unknown, but undisputed Holling- it is the light most to party favorable body er’s and effects were found in the opposing the motion.” Goodman v. Mead entry, tunnel vicinity east the 01 566, Johnson & F.2d explosives storage box. 1976), denied, Although cert. 1038, 429 U.S. 97 S.Ct. 732, 50 say L.Ed.2d 748 did anything “On review to his co- appellate required court is apply to before leaving entry, possi- worker the 03 same test the district court should have ble inference from the evidence is Hol- utilized initially.” Id. linger going blasting powder was for more box, from explosive storage located be- B. tween the 01 and the entry water valve.

Proximate Cause Report; Dep. Bethlehem Accident Weik at apparently undisputed It is 23-24.3 also The first basis for the district court’s summary judgment occasion, was scooptram’s route on According Superintendent enough powder complete to Assistant Mine number to blast, Weik. they going chunks were to and at that Rump Hollinger’shelper, they secondary- point, Rump Hollinger say anything was didn’t were — preparing large Rump going powder, some chunks for to that he for more was blasting they quite ... didn’t have entry proceeding past the 01 and on to them.” This was the basis for Barbe’s con- valve, previ- water was a deviation its from type clusion that of a biodirectional “[s]ome pattern ous turning into the 02 or alarm,” rating set at different decibel entry to mucking operations.4 continue its frequency identify a danger so as it as 81a; Report, App. Dep. MESA Weik signal, necessary alert miners to the evidence, 35-36. In view of this scooptram’s approach and to the fact might reasonably conclude that even if Hol- go- the driver could not see where he was linger scooptram had seen it was ing. Barbe at 10-11. The sound and passing entry, the 03 he assumed it generated itself going to turn into the 02 or 01 entry as apparently adequate were not considered done, previously and therefore he warning by Mining the Federal Enforce- continued to walk explo- east towards the (MESA) Safety ment and Administration storage sives box5 with his back to the report since accident recommended that scooptram. Even if heard the scooptrams be with audible warn- scooptram’s approach, may continued App. ing devices. at 83a. unaware of its exact location and if he unconcerned believed that it was go- recognize We that under the circum ing turn reaching off before him. case, stances of this will not be produce district court also stressed the able evidence of Hollinger’s evi- dence that up “lit during like actions or state of mind the crucial Christmas tree” Nonetheless, and had a noise level period.7 com- 14 to 20 given second parable truck,6 to a diesel Holling- and that summary judgment, strict standard for er “had no hearing seeing prob- known we believe the that district court could not lems.” 505 F.Supp. apparent- at 899. This conclude as a matter of law Hollinger that ly led the district court to a conclude that scooptram’s presence was aware of the im jury reasonable must necessarily infer that mediately impact. before the jury Since a the noise and generated by the scoop- reasonably could that he was conclude tram in operation normal by would itself scooptram’s presence aware of the at that have been sufficient to have alerted Hol- time, it also an could conclude that auto linger to approach. its matic warning device would have alerted Hollinger

However, scooptram’s to the approach, and there was testimony plain- expert, Barbe, prevented tiff’s thus could have Lewis the the accident. that normal operating Ordinarily scooptram, jury noise of the a the while must determine issue loud, was “subconsciously proximate nullified by peo- cause. We find that in this ple mines,” in pay who plaintiff produced “don’t attention case sufficient evidence they because operator assume the can pose see a triable issue. just left, Rump just he emphasized but knew 6. that he was The district court Hartz’ testimo- going powder. for more ny higher that the noise level was even Dep. Weik at 23-24. dry. F.Supp. the scrubber tank was at 899. However, there was also the however, testimony,

4. There was the condition of the scrubber should have had no scooptram gone had water valve on “a Dep. on effect the noise level. Weik at 27. couple” of other occasions in earlier the shift. Dep. Hartz 7. is It well-established that in the absence of contrary, evidence to the decedent a Hollinger step 5. Hartz testified that sawhe into wrongful presumed death action is to have drainage manway the water from across the 01 exercising been due care at the time of the entry, doing get and assumed he that was so to See, e.g., accident. R.R. & Potomac Baltimore scooptram. However, clear Hartz indi- 461, 473-74, Landrigan, v. 191 U.S. 24 S.Ct. might cated that there have been other reasons 140, Martin, 137, (1903); 48 229, L.Ed. Webb Hollinger step manway for into the 1966); 364 F.2d 231-32 Morin v. resumption would be consistent with his Kreidt, 799, 90, 97, 310 Pa. 164 A. 800-01 walking explosive storage towards the box— example, glove.” for Dep. to “wash his Hartz 23-24, 33, vigorous argument

C. Plaintiff’s most di- is scooptram to the rected structure of Change Substantial of plaintiff’s itself. thrust claim is that device, manually-activated warning a such ground The alternate for the district horn, as a be ineffectual because the judgment, court’s of summary scooptram is the vision constructed so change” “substantial sub- driver is who seated on left-hand sale, sequent to Wagner’s was based on the placement side is restricted undisputed evidence that the large scoop. Plaintiff asserts that in such a awith manual horn at the device, situation an automatic time sale but that the horn had been which is not on dependent efficacy prior removed sometime accident. anyone seeing the driver whether is in the path the scooptram, adequately pro- can The issue of change, substantial working in vicinity tect those cause, like generally is one for undisputed It is after vehicle. Hartz Co., jury. Merriweather v. E.W. Bliss sighted longer Hollinger was no able to However, 1980). F.2d Holling- see area of the tunnel in which genuine where no issue of material fact er had been. If Hartz could not have seen presented, may grant summary court longer position was no judgment. dispute There is no might safety, conclude that he removal of the manual horn constituted would have had no reason to have sounded change. But every is obvious that not “[i]t Indeed, horn. manual Assistant Mine Su- change in a will vehicle relieve manufac perintendent testified that “if Weik there liability” turer of under section 402A of the scoop, would have been a horn I (Second) Restatement .of Torts. For a Hartz, doubt whether the operator, would change to be considered “substantial” for have blew the horn.” Weik [sic] purpose, change “the must some difficulty relying The other causal connection with the accident.” Den manual horn in this case is Hartz’ testimo- nis v. Ford Motor ny, by Wagner, relied on (W.D.Pa.1971), aff’d, 903-04 471 F.2d 733 scooptram’s approach. aware As 1973). words, Cir. In other if the pres above, noted he Hartz testified as ence aof manual horn would not have passed entry, the ac- he saw prevented the accident its then removal knowledge scooptram’s approach and cannot be considered a change substantial step drainage manway, into the water so preclude as to liability. Blim v. See waiting he assumed that was for Industries, Inc., Newbury 443 F.2d 23-24, pass. the vehicle to Hartz (10th J., (Aldisert, 1971) Cir. sitting by 31, 33, Again, if Hartz assumed Hol- designation); Comment, Substantial linger scooptram, jury was of aware a Change: of Alteration a Product as a Bar might conclude he would had no rea- have to a Manufacturer’s Liability, Strict 80 son to use the manual horn. Parenthetical- Dick.L.Rev. 250-51 ly, we note there is no Hartz that he would have the manual In used considering significance of the re- scooptram. horn if it on had been Nei- horn, moval of the manual the district court party question ther asked him that on his found that Hartz in had fact seen Hollinger deposition, and we cannot assume what ample “with opportunity to a blow horn if answer would were trial. be he asked one had been mounted on the vehicle at the merely present We find that on the of state time.” 505 F.Supp. at critical record, open. the issue remains question, however, is not whether Hartz could have blown the horn but whether he grant a of reviewing Our function in that, would have blown As plaintiff’s it. to summary judgment is to ascertain if there separate evidence shows two bases which any genuine permissible is issue fact a jury question has been made out. inference from which must be left fact evidence, Schreffler, In view of the a In both Hanlon and there was jury. reasonably pres- conclude that

might originally product little that the as doubt ence a manual horn not have would the acci- designed prevented would have event, prevented the accident. In that its dent, that the modification made would not a sub- removal have constituted of the employer was a cause change preclude stantial sufficient to liabili- case, however, plaintiff In this con- injury. ty section under 402A. which the tends that manual horn with originally equipped was (3d scooptram Cyril Hanlon v. Bath F.2d 343 accident, 1975), prevented the and there- not have Schreffler Birdsboro 1974), Corp., 490 F.2d 1148 relied on fore that removal could not con- court, Thus, by Wagner Hollinger’s both and the district are there tributed death. Hanlon, distinguishable. plaintiff In em- presented issue as whether is a factual ployee injured was accidentally when he ingredient an substantial essential press a which he a, activated brake from was change, causal connection between the attempting piece to extract a of metal that resulting injury, which modification and had press become stuck. The brake had patently present was in Hanlon and Schref- originally been pedal foot fler, missing in this case. required operator to exert a con- (sixty-five pounds) siderable amount IV. pressure to employer activate. The had activated, easily substituted much more Feasibility foot a dictaphone movable switch similar to Wagner contends that if we find even foot In pedal. sustaining jury’s verdict are jury there issues to causa- defendant, we held relation “[i]n change, tion substantial we should af- activation, danger of accidental this substi- summary judgment be- firm significantly tution different and much plaintiff cause failed to demonstrate more sensitive starting was mechanism genuine issue of fact as to whether the change ‘substantial in the condition in absence of an automatic sold,’ press which ... with- was [the brake] rendered “defective” meaning of section 402A.” 541 F.2d “unreasonably dangerous” as those terms are in section 402A Restate- defined Schreffler, In injured was (Second) Although ment Torts. load hot steel billets which had been suggests the district court “found” accidentally released by employee a fellow “defective” or pushed against him the machine “unreasonably no such dangerous”, we see working. Plaintiff stand- opinion. “finding” the district court’s In ing at a attaching “transfer table” chains to portion opinion to the devoted a load of steel preparation its for remov- issue, change substantial the court ex- al by table, a crane. The as origi- transfer feasibility doubt pressed as to the of an nally manufacturer, sold defendant con- warning automatic device. That discussion of a sisted series parallel gaps of with rails upon also touched the issue of however, between them. The employer, portion cause. The relevant reads: had filled these steel openings plates with has not demonstrated how [P]laintiff to enable the transfer workers to table use warning] device such automatic [an them as walk-ways. We a direct- affirmed operate. expert proposed would Her tes- ed ground verdict for defendant on the deposition at his that such device tified the transfer table substantially was “so operate independently oper- would modified that it was then to use feasible spot. blind equipment in ator whenever there was a from manner different However, which would he there was al- have been from conceded that expected ob- servation of the original design.” ways spot scooptram. 490 blind on the F.2d also did not expert confessed that he 1976) (interpreting F.2d could be de- how such a device know liability); Jeng Assuming Jersey for the moment that New law strict signed. Witters, (M.D.Pa. unsup- F.Supp. qualify expert, as an his 1979) 1978), aff’d, 591 F.2d 1335 ported genu- conclusions will not create a interpretation Huddeli (applying ine as material fact. More issue law). expert Pennsylvania this same acknowl- importantly, edged automatically acti- that even if an consists The evidence on this issue operating indepen- vated audible device plain only deposition of the dently practicable, of the driver were As we read expert, tiff’s Lewis Barbe. equipped had even if the testimony, it is unclear which of Barbe’s therewith, he could not conclude that the warning possible types of automatic two prevented accident would have been describing: which would devices he was one short, plaintiff of one. In has installation needed, selectively itself activate produced any suggesting not evidence whenever or one which would activate itself feasibility designing an automatic direction, in a the vehicle travels forward device, warning whether it would have visibility is most the time when the driver’s effect, any positive had and whether the Wagner points severely restricted.8 prevented use of this device would have inability fully to describe how a Barbe’s the instant accident. designed the former could be device such as (footnotes omitted). at 902-03 type of device argues the other The district explicitly court did not state signal would become ineffective because independent this was an basis for the over time. While the ignored would be entry judgment, with summary did activating feasibility selectively of a holdings, the other two and did relate us, questionable to does seem somewhat feasibility the discussion of to the ultimate such suggested possibilities some Barbe product issue of whether the was “defec- that there were simi design and testified tive” “unreasonably dangerous”; also it available, commercially named a lar devices did not analyze plaintiff all of the evidence brands, referred to specific number of Therefore, proffered on feasibility. we are which is underground equipment other expand reluctant ambigu- this brief and type with some of automatic equipped passage separate ous into a basis for the 16-17, warning function. Barbe district court’s judgment. operate which would 23-26. As to a device motion, rejected Barbe agree plain We with on forward simply tiff that a contin demonstrating suggestions has the burden of defense counsel’s warning part would become uously operating automatic device which she alarm propounds the mine was in fact feasible. the ambient and noise of estab “[I]n lishing design subconsciously ignored by those question de and thus be [is] fective, proof area.9 He testified that he working must offer of an in the alternative, design, practicable safer with vehicles experience under Levin, “most of operated circumstances.” Huddell v. devices which 9. Barbe 8. Because of right there and he can see where the front you can see driver “is backup alarms. Barbe testified that when the drivers of other at the driver Absolutely does not don’t need front of the right responded: going happen. Experience not, where he is [the large placement in reverse and he is because what warning scooptram, visibility vehicles, differs from that of going.” device] of the you’re saying indicates large scoop Barbe because he require sitting Dep. just is, Barbe there activates period can ately the more “Fire in the It is a reverse; say Dep. knows and takes are certain nt hazard. It’s of time that these hole,” that for a they pay at 27-29. person # hole,” everybody then immedi- that the more ten things and its been ^[*] attention to everybody starts like when years precautions that or fifteen things they subconsciously they proven over a ^[*] them. hear work say, years and ^[*] yelling, these, “Fire .... you and 410 29, time,” emphasized, court posi-

the id. at and insisted that the that he could not by tively presence made such devices was distin- that sound state of an auto- guishable machinery from the noise of warning prevented have matic device would part case, which becomes of the ambient testify sound in the accident this he did that level of the Id. 18-20.10 mine. at that certainty” “a reasonable it have, knowledge upon based his and expert offered no witness of its really experience that “these work alarms own to testimony sup refute Barbe’s or to people do them.” pay attention to port warning its claim that an automatic Oregon Dep. Barbe at 21-23. As the Su- device was not feasible. While Barbe’s tes preme Hyster Court in stated Baccelleri v. timony in lacking specificity is times Co., 3, 351, (1979): 287 Or. 597 P.2d 353 clarity, we must it the light construe in plaintiff. most to v. It is true there no favorable Goodman is this Co., 566, (3d Mead Johnson & F.2d happened 534 573 if accident would not have an denied, 1976), 1038, Cir. cert. 429 97 U.S. provided, alarm had been but there sel- 732, 50 (1977). S.Ct. We L.Ed.2d 748 is such in case in which dom evidence a find_ feasibility issue of the of an auto is charge is failure to warn. It suffi- one, warning matic particu device is a close if is prove cient causation there evi- larly plaintiff provided because has not a can jury dence or draw an inference clear diagram and concise picture verbal warning generally that a in is effective However, type device it posits. in preventing such accidents. us, face of the record before we cannot agree approach, with is We which con- genuine conclude that no presente issue is holding sistent our on earlier d.11 record in this case the issue of The district court also included in the is by jury. cause to be decided feasibility separate question discussion the V. plaintiff whether established that an au- warning tomatic reasons, device would in fact For foregoing we will vacate prevented Hollinger’s plain- death. While grant the district court’s of defendant’s mo- tiff’s expert acknowledged, as the district tion for judgment, and remand light testimony, product “unreasonably dangerous” In agree of this we is cannot as one to “[a]ppellant’s with the dissent’s by judge statement that jury, be decided and not the based expert constantly operating conceded that a what an on asserts was incorrect read- alarm would be undesirable.” At Pennsylvania ing Supreme More- deci- Court’s over, impinges the dissent on the role of the Co., in sion Azzarello v. Black Brothers 480 Pa. factfinder when it “one contends that must 547, 391 A.2d 1020 review of the Our inevitably selectively conclude” that a activat- district court’s decision convinces us that analyzed it ing operated manually device would have to be propriety summary judgment driver, and would therefore amount to sufficiency under the traditional standard “nothing more than horn.” At 411. Barbe present jury question, the evidence and not expressly rejected suggestion standard, under a more relaxed notwithstand- adequate manual horn would be an substitute ing permits its statement that Azzarello device, for an empha- automatic approach. 505 at 898 & n.29. The sized the distinction between the two. Barbe Bailey court for its v. relied statement Atlas 16, might 20-21. While the factfinder Co., 585, (3d Powder 602 587-88 F.2d & n.3 Cir. properly testimony, choose not credit this 1979), Baker v. Outboard Marine we appropriate do not think that it is for this 176, 1979), F.2d 181-82 do which not court to conclude as a matter of law that countervailing precedent discuss fed- “inevitably” so, must especially light do in sitting diversity eral court in is not bound deposition the fact that Barbe’s is responsibility subject. state law when the division of evidence The dissent has con- judge implicated. ambiguities strued the between See admitted of Barbe’s tes- timony plain- Byrd Ridge Cooperative, least favorable v. Blue Rural Electric tiff, duty Inc., reviewing 893, when our U.S. S.Ct. L.Ed.2d 953 summary judgment motion for Levin, (1958); is to defendant’s F.2d Huddell quite do the reverse. 1976). posture In this case we reaches us need decide issue. suggests 11. Plaintiff court district im- properly question treated the whether proceedings design jury, for not inconsistent with 402A defect I this to the have no opinion. difficulty concluding that manufacturer requirement met this precisely. ALDISERT, Judge, dissenting. Circuit Just, may hang sign as one a not majority The have concluded that the evi- reads, horse,” “this is a the neck around of a dence presented before the district court a expect regard cow onlookers to triable issue in proceeding this cow, anything animal as than a other nei- appellant seeks to an accident in translate expect ther should one others to be im- coal mine products liability into a case. I familiar pressed pieces new labels for disagree. give appellant I will Aan for machinery. proposed quasi-automatic The effort, but, court, with the district I am of “warning manually activated device”— record, that, the view on this the appellant’s require nothing circumstances so —is innovative theory cannot survive a motion horn,2 undisputed than a fact more summary judgment. for is that the manufacturer scooptram with a horn that was removed major Two impediments prevent me from sometime before the I day accident. accepting appellant’s convoluted theory, would affirm the judg- presented Judge Troutman the district ground ment on this alone. court repeated before this court. Each impediment independent constitutes an II. ground for granting the manufacturer’s rejected Even if is analysis summary judgment motion. theory that there is difference between automatic, quasi-auto- horns that are fully I. matic, manual, purely the uncontro- I first clear away the semantic under- clearly verted that a warning facts show brush. The plaintiff’s thrust of the case is scooptram device on the would not have failed to equip manufacturer prevented this accident. unfortunate scooptram warning Appel- with a device. expert lant’s constantly conceded that a purpose warning The of a device is to operating alarm be would undesirable and that a already danger alert those not aware presented specification instead a vague present. require for warn- Hollinger did an ideal ing: scooptram “automatic” alarm that would op- coming he had seen the only erate when the driver only oper- could toward him earlier. The seconds people not see path. in the vehicle’s Appel- Hollinger saw scoop- ator testified that expert lant’s and, could not describe how such acknowledging approach, sig- tram selectively operate, actuated would During operator.3 nalled to the short but one must inevitably conclude signal im- interval between that driver would have manually.1 to activate it pact, effectively the machine its own This being theory device, warning reminding sole anyone nearby subrpit Appellant’s lawyer authority, theory dictionary type advanced the same defines this argument: “c) give at oral horn as a device sounded warn- ing.” Dictionary Webster’s New World JUDGE ALDISERT: The automatic Ed.). Language (2d College American [warning be used under certain device] circumstances? deposition, scooptram operator In his re- COUNSEL: Those circumstances where sponded questioning follows: there was a You deviation. don’t have to run practice Is it or Q. was it a mine for day. it all foot, miners who were when a theory JUDGE ALDISERT: then is them, approaching lights, to turn their you should have an automatic lights helmet in the direction of the [their] device that would be used where the scooptram? driver could not see in front of him? Right, A. towards us. Absolutely COUNSEL: and where he did Is that what Mr. did? Q. people not know where the were. Objection. MR. SENESKY: pre-schoolers 2. Even THE understand that a horn on WITNESS: Yes. approach App. a vehicle is sounded to announce the penchant For those of the vehicle. presence. operator

of its characterized as lit up like a Christmas producing

tree and noise like diesel

truck.

Nevertheless, why because it is clear not get failed to out of the machine’s

way, the case appellant go would let this

trial. thing proceed It is one trial support

because summary evidence of a

judgment motion has been met factual

showings question that raise a of material fact; quite it is another to ask

speculate might what the decedent

been thinking and hypothetical whether a

alarm might have made him alter his ac-

tions. The operator’s testimony evidence that can be adduced on Appellant causation issue. did offer

any testimony to counter this in the district

court, nor is there suggestion that trial produce

will additional evidence. Accord-

ingly, I would hold that the alleged whether

design defect was the cause of appellant’s death of decedent was not a

question warranting trial.

III. separate reasons,

For these I would af-

firm Judge Troutman’s

judgment in favor of the manufacturer.

TAYBRON, Robert, Appellant, HARRIS, Secretary

Patricia Health, Education &

Welfare, Appellee.

No. 81-1389.

United States Court of Appeals,

Third Circuit.

Argued Oct. (argued), E. Kenneth Walker Freeman & Decided Dec. Newark, Bass, J., appellant. N. Mary Cuff, Catherine Asst. U. Atty., S. Chief, Deputy (argued), Civ. Div. William

Case Details

Case Name: Patricia A. Hollinger, Administratrix of the Estate of Germaine S. Hollinger, Deceased v. Wagner Mining Equipment Company, a Division of Paccar, Inc

Court Name: Court of Appeals for the Third Circuit

Date Published: Jan 15, 1982

Citation: 667 F.2d 402

Docket Number: 81-1359

Court Abbreviation: 3rd Cir.