Stephen A. Walsh, in No. 15639 v. Miehle-Goss-Dexter, Inc., in No. 15640 v. Edward Stern and Co., Inc

apparent Bankruptcy Act basis fee as upon minimum the recommended fees, it that the for reduction of is clear in the bar association schedule of signifi- of county size of the estate involved was done. Un- in which the work was and District re- concern to referee find the cant both circumstances we der such economy requested raise as quirement Court. Fees would of has been met expense this es- unsupported of administration of either the reduction is recovery. per tate cent of evidence. to 38.5 the law or the majority to overlook seems normally Although re we would to rendered services are fact that where by the mand for further consideration compensation to from which an estate light ruling, since referee in the our come, proportions of the es- modest findings in us the we have before tate, decently adminis- if to survive it is support an award of the our tration, compel frequently allowance requested, with di we remand amount other circumstances of fees which under allow attor to the referee to rections inadequate. regarded wholly would be as ney’s appellant in the sum fees ability upon It be reflection would $11,410.00. engage in administration of courts to if the costs of court adminis- estates Judge (dissent- MERRILL, Circuit require undue to tration were such as ing) : depletion If administered. the estate I dissent. attorneys, private practitioners, to are administration, participate in such abundantly the referee clear that prepared accept fact that should be given full District Court regulating voluntary fix- their schedules in consideration all relevant factors charges may inappropri- ing of found be majority fixing question. the fee light estate ate of the size disagrees simply the manner volved. which those factors have balanced been For reasons I affirm these would against each other. District Court. reviewing upon It is such issues that disagreeing courts, even while below, traditionally court defer choose to to the lower court’s ex- its

ercise discretion. weight given with reference to the to be spirit the economical the Bank-

ruptcy particularly Act there are Stephen WALSH, Appellant in A. pelling A deference. reasons No. must balance between two com- struck peting cost of bank- interests: INC., MIEHLE-GOSS-DEXTER, very ruptcy should not itself consume the Appellant in No. designed proceedings pro- res the are tect; fees allowed be such CO., AND Inc. EDWARD STERN discourage competent not to counsel Nos. 15640. participation. active and effective Appeals Court of United States certainly judge local referee best Third Circuit. upon balancing able to fix a fair of these Argued Sept. interests, degree 1966. to ascertain ability may reduced fees affect May Decided competent to secure the coun- services existing sel under the circumstances community. Further, while the em- has phasized spirit economical

Henry Huhn, Philadelphia, Pa. F. (Howard Pa., Detweiler, Philadelphia, R. Miehle-Goss-Dexter, brief), on for Inc. Philadelphia, Borowsky,

Milton M. (Freedman, Lorry, Borowsky & Phila- delphia, brief), Stephen Pa., A. Walsh. HASTIE, SEITZ,

Before SMITH Judges. Circuit OPINION OF THE COURT SMITH, Judge. WILLIAM F. Circuit personal injury This action sus- tained an industrial accident was brought against Miehle-Goss-Dexter, defendant Inc. (Miehle), the manufacturer an offset printing press plant of installed (Stern), Edward Stern & Inc. plaintiff’s employer. complaint The alleged negligent that the defendant was respects particularly in several in its design failure to and manufacture press proper safety adequate “with devices.” leave the court the de- With complaint third-party fendant filed a alleged the cause of the accident, part, or in either in whole In Stern. trial of against only the action Miehle evi- dence was that offered on behalf “hickey” plaintiff; Miehle its defense on man rested to remove from lower cylinder equipped, evidence. the same as were upper cylinders, safety bar or with a judg- present appeals from device; cylinder protective other ments entered on in favor verdicts customarily speed approx- rotated at a against Miehle and in imately per minute. 65 to 100 revolutions against favor of Miehle Stern. Intending “hickey” flick plaintiff seeks and remand of reversal rotating cylinder with the heel the action for on the a new hand,2 slightly stood on a damages. issue of Miehle facing press. platform As elevated seeks remand of the reversal and action catching fell, forward he reached entry for either in its right cylinder arm between the and a appeal favor or new trial. The press.3 His structural member of the third-party is not now Stern badly arm the was so crush- below elbow us, argument having before thereon been amputation. require ed as to abeyance. 15641). (No. held Appeal Plaintiff’s The briefs submitted on this plaintiff urges appeal The of reversal the evince a marked difference of grounds the the on that court parties the to the between as first, grant below erred in its refusal to exact manner in which the accident oc his motion the apparently for severance third- of curred. This is difference party claim, second, conflicting and in certain of its the ascribable to inferences However, justifiably permissible instructions to the the proofs the under argument plaintiff’s by main the plaintiff. However, thrust of offered the on against damage appeal is required directed the award accept we are that $50,000, in the of amount he here version the of accident which accords inadequate. specifi- maintains was The with the evidence and inferences viewed light separately cations of error must con- plain be the most favorable light argument. Ry. Co., sidered in tiff. Tennant v. P. U. Peoria & 321 U.S. S.Ct. L.Ed. The motion for severance of may reweigh We not third-party claim at the was made merely seemingly evidence because plaintiff’s close of the and evidence after gives support inferences; to inconsistent the denial Miehle’smotion direct of for a jury, it is the function of not and appeared ed verdict its favor. It then court, inconsistency. to resolve such that Miehle intended to offer no only Ibid. The facts relevant to the is defense of main action but would sues appeals raised in these consolidated go against forward on its claim Stem. briefly can be summarized as follows. plaintiff The contends that the of denial employ The had in the his been motion was error the circum approximately of Stern for stances of this but this we can thirteen case years day agree. severance, and on the not of the accident A motion such held position pressman. here, of assistant At as was made addressed to engaged press- that he time with a sound discretion of the court and operation press, regarded man in the denial thereof cannot by had been installed in the manufactured and erroneous absence of clear show by ing showing press- Miehle. He was instructed of abuse. There is no such ' particle testimony 1. A used to 3. it could term describe a of ink There was from which foreign or other substance. have been inferred cylinder rotating with the touched the According to the testi- uncontradicted caught so heel of his hand and as did mony customary practice this was cylinder his arm and a struc- between plant “hickeys” unless Stern were so press. tural member require cleaning numerous as to cylinder, press in which event the shut down.

41$ argument damages. This circuitous and record examined the here. We conjecture based on as to basis action of convinced apparent It adversely sub- award. affect not court did damages amount of not meet plaintiff. did rights of the stantial plaintiff’s expectations this is but Miehle, request Pursuant adequacy. the test objection, court over testimony offered jury provisions of selected read to injury, to the nature extent Safety Health temporary permanent effect 25-6. 25-2 and P.S. Law of §§ thereof, past prospective his loss language appears that sec- from its earning earnings, impairment only responsibility on imposes tion 25-2 capacity, expenses and medical incurred statute, employer covered an significance and to be incurred. recovery sought Miehle Stern. Since adequately explain of this against theory of the lat- on the Stem charge comprehensive ed to the in a applica- ter’s the section was specific requests which embodied seven ble, only third-party action. damages. for instructions on the issue language section 25-6 broad nothing There is record indicate “any person,” poses responsibility either failed follow employee, employer, or both. cluding fairly instructions of the court or to However, in this case the evidence evaluate the evidence. We have consid only the section was ered the evidence and find that third-party action. amount of the award neither inade appears from the record that It quate nor excessive but was well within n pertinent provisions said Act permissible limits. any jury ex without were read Dependant’s Appeal ap planation to be as how were At the close evidence de- plied the factual in the determination of fendant moved for direction of a ver- issues. are of the ab We favor; dict its in explanation motion was denied. the instructions sent such an judgment notwithstanding A motion for correctly given relate law as did and, alternative, the verdict in for errone issues and were therefore trial, similarly a new The Liggett Myers denied. To ous. Pritchard & v. urges 479, defendant here reversal Company, Cir., 350 F.2d 486 bacco 3 grounds argued support same den., cited, cert. and the cases therein arguments said motion. Several of the 987, 549, L.Ed.2d 382 86 15 U.S. S.Ct. by appear here advanced defendant However, there has been no 475. since predicated to be on a view of the evidence showing prejudice to the substantial it, contrary most favorable rights plaintiff, must error be by established rule disregard must we harmless. Civ. as Fed.Rules guided appeal. on this 61, U.S.C.A.; Proc., rule Palmer 28 v. Hoffman, 109, 116, 63 318 S.Ct. U.S. The defendant maintains Slatinsky 477, (1943); v. 87 L.Ed. 645 the risk assumed of an obvious Bailey, 136, 141 (8th 1964). 330 F.2d Cir. danger guilty and was therefore of con tributory negligence argues Finally, as a matter of law.4 argues adversely for this rea influenced verdict son by court erred effect the trial er denial the cumulative rors, this, maintains, motion its for a directed is reflected verdict as allegedly inadequate well its as motion notwith- award of Myers Co., supra, 484; “assumption Tobacco is used 350 F.2d of risk” The term secondary Joyce Quinn, Pa.Super. throughout v. 204 205 its brief contributory (1964). synonymous A.2d sense as Liggett negligence. See Pritchard & v. standing question by verdict. The The rule established evidence, Supreme decision is whether the viewed Court of is light plain- determining most favorable to “In follows: the standard tiff, injured was such to warrant either the of conduct of one is who entry performance employment, direction of or the a verdict judgment notwithstanding working verdict. cir conditions and all of the The question thereto, including is one which must be decid- cumstances incident obligation job, ed under federal law. Woods v. National his must to do his be con Life Stringert and Accident Insurance sidered: Co., Inc., v. Lastik Products (3rd 1965). F.2d Cir. 397 Pa. 155 A.2d performing employ If in question contributory ment, a workman conforms to ordi usually is one of fact for de usage nary thereof, this is by jury. termination one the exercise of due care and indicates by only law for decision the court in a (citations lack of careless omit conduct: very clear case in which the evidence ted).” Gregorius Safeway Steel Scaf is such that there is no room for fair Company, supra. folds The evidence is and reasonable men to differ as to the not conclusive is relevant and Brough conclusion to be drawn. contributory material issue of Supply Co., Strathmann 358 F.2d negligence, and this is of fact an issue (3rd 1966) and the Cir. cases therein for determination Ulm v. cited; Rinard Yv. B H Sales Serv McKeesport Co., supra. Tin Plate Co., (3rd 1964). ice 328 F.2d 959 Cir. injured question ultimate employee whether Where, here, the evidence is reason degree exercised of care com ably susceptible of infer inconsistent danger mensurate with the risk of inci ences, jury question presented. Ibid. dent to his work. Ibid. pointed out, As heretofore it is the func tion of the to resolve the inconsist Pursuant to the Fed.Rules Civ. ency. principles same Proc., 51, U.S.C.A., rule 28 Miehle filed Pennsylvania. Dought under the law requests specific written for instructions ery Philadelphia Bank, National following: which included the (1962) 184 A.2d and cleaning oiling “The and of machin- the cases therein cited. ery prohibited while in motion is in judicial A determination of places exposure all where to hazardous contributory negligence precluded was contact is involved.” by also the per in the that denied, request, This the court which assigned formance plain task the language safety was couched in a the customary tiff prac intended to a follow regulation promulgated by Depart- tice prior which he had followed the the prevailed accident and which had Industry pursuant in the ment of Labor and plant many years. Although Stern for authority by statute, the vested customary adherence practice charge and P.S. 25-12. was Since the main § usage necessarily will not plainly inadequate an in absolve the standard of jured charge workman of a by of contribu care to be exercised a workman tory negligence, cleaning moving machinery evidence thereof is rele the denial of vant by request Although material issue raised error. not en- was charge. Gregorius Safeway language titled to an instruction Steel Scaffolds requested, 409 Pa. Miehle an was entitled to in- (1963); grounded 187 A.2d principle Ulm v. Mc- em- struction Keesport Co., regulation. Tin Plate 263 Pa. 106 bodied The contention (Pa.Sup.Ct.1919); A. Harper reg- and here that the made James, Torts, inapplicable Law 17.3. The is § ulation was If, is without merit. sue, weight given well as the contended, to acci- evidence, is for Ibid. occurred was dent while response ques- to the reg- cleaning cylinder, instruct engaged in tions, coupled denial his erroneous with applicable. ulation was request specific a instruc- of Miehle’s for jurors deliberated had After tion, warrants reversal. they returned to approximately six hours below will request the court for further with courtroom re- action will be request contained be reversed and the Their instructions. that a new trial following questions: manded with direction be ordered. “May clarification have a we negli- contributory regarding law Judge (dissenting). SEITZ, Circuit gence ? opinion it As I read the any, law, re- if “What State con- finds issue moving garding parts?” tributory negligence was for these have been obvious It should (1) the evidence was reasons: two notwithstanding the ini- questions necessarily susceptible of inconsistent were confused jurors instructions tial injured ferences, (2) plaintiff when badly in need as- as to law customary practice to follow a intended given assistance as was sistance. Such prior he had thereto. which followed of what was needed. far short fell agree majority’s conclu- with the question the to the first In answer concerned sion we were jury, judge negli- re-read to without contributory governing principles explanation, paragraphs from his gence three the fact But discuss. composed mostly charge of abstract principal main con- one of defendant’s re-reading of in- principles This of law. plaintiff, is that as his own testi- tentions more, already given, without mony shows, guilty structions conduct question responsive con- under law constituted scarcely matter have clarified the could tributory per And there se. important, jurors’ More minds. dispute is no such conduct was however, inadequacy injury. cause question, judge’s answer second argument goes like Defendant’s this: response from the to which he re-read 25-12, Under 43 Penn- Pur.Stat. § charge provisions of Penn- main sylvania Department In- of Labor and Safety Law, sylvania 25-2 Health and §§ regulation dustry promulgated 25-6, re-reading, supra. This with- heading “Mandatory Requirements” relating provisions the the evi- out to cleaning “The oil- which stated that case, similarly not re- dence the was ing machinery pro- of in motion is while sponsive. places exposure to in all where hibited hazardous contact is An involved”. Where, here, a regulation plementing provides that the. difficulty requests makes its known regulations employer apply to both applica further instructions on law employee. Under 43 25-15- Pur.Stat. § issue, judge important to an ble penalties provided for criminal are viola- give required supplemental is to such regulations adopted tion of guide may necessary to instructions statute. Bol it in determination of issue. regulation 607, mandatory States, lenbach v. 326 We thus have a United U.S. 611, 612, 402, employees. to to 90 L.Ed. 350 Adherence 66 S.Ct. regulation (1946); Wright States, impractical this not United 102 was or v. 36, 4, dangerous U.S.App.D.C. F.2d 11 in the here in- 250 circumstances regulation re-reading very perfunctory Á of in volved. Violation of per may structions have led to the is se under Currie, difficulty 532, require not v. does fulfill law. Jinks 324 Pa. 188 opinion (1936); City of ment. We are that the A. 356 D’Ambrosio v. judge adequately Phila., of the trial to 354 47 failure Pa. A.2d 174 416 (1946); Boyd Smith, myself,

A.L.R. 1166 I seen it seen them do it (1953); presses. They Pa. A.2d 44 Kuhns v. on the other did but Brugger, way.” 135 A.2d I never done it that (1957); Deal, A.L.R.2d 761 Natoli v. second, regardless plain- And tiff, of whether Thus, (E.D.Pa.1962). F.Supp. experienced worker, an fell or was may the court must not act and leave pulled machine, into the his own testi- contributory negligence issue to the mony indisputably establishes that at City Phila., D’Ambrosio engaged time accident he above. cleaning moving machinery. He tes- plaintiff’s appears own evidence to tified : strains plate chinery” proposition and so 6,000 at lation. The show applicable. the time regulation printing clamped revolutions indisputably credulity within printing plate involved, majority opinion of the accident. He around the press But not had no per hour, cleaning “machinery” rotating meaning that do application lower I. contends that about the attached rejects cylinder regulation think it because argues 4,000- regu- “ma- peared you tion cylinder ed that the self “Then put my and I fell “Q. “A. That’s ^[******] “Q. I And knock it And then arm at a leaned over the * * * hickey area in front of had then point in to right. your off; when you where knock hand in a is that correct? stationed walk appear? you hickey ap- pick estimat- there to lower your- posi- off part machinery “A. That’s correct. was not purposes applying regulation, “Q. you your How far do hold though rotating cylinder even was. cylinder you hand from the while waiting Except piece ap- argument for the for this dirt pear? plate part machinery, was not appear does not to contend that Usually “A. about an inch. applicability regulation raised “Q. you keep And there plaintiff’s contributory issue as to cylinder your revolves under hand? negligence under the facts. Neverthe- up “A. Until that area comes less, con- view. cludes that such is the situation here. “Q. you try And then to strike it agree. First, But I cannot I think the off? own shows that he danger was aware of inherent right.” “A. That’s cleaning process. Thus, he testified: Plaintiff himself thus established that “Q. you Do ever use a cloth or cleaning machinery he was it was while anything like clean off the exposure point in motion at a where cylinder? hazardous contact was involved. “A. true that testified never and others use a cloth. by plaintiff used that the method re- “Q. Always your used hand? customary practice. move dirt was Un- trying “A. or Hand der normally common law this would me, show I have seen them do it with jury create issue as to wheth- cardboard it much of risk too er assumed risk of an ob- cardboard; I wouldn’t do that. danger. Gregorius Safeway vious v. “Q. Why cleaning it off with Steel Scaffolds 409 Pa. cardboard too much of a risk? (1963). 187 A.2d 646 But there more you Pennsylvania legisla- “A. Because would have been this case. The you by statutorily regu- off balance would have to ture has authorized hold mandatory with two hands lean over. lation fixed a standard of disregard plaintiff’s customary to this care, is created issue “and merely customary contributory negligence legislative because is but mandate] [a have rendering guilty employer found negligence, every could be one practice dangerous in- responsible consequences re- countenanced the it sulting directly it.” volved. Co., Pa. American

Jones v. Caramel o. v. motion n. I think defendant’s (1909). A. also See granted. should have been Refractories, 332 Price v. New Castle have A.2d We here own then a case where he a man- shows that violated

datory regulation only ap- which was not protection.

plicable to him his but was that, seem even

though plaintiff’s testimony shows own regulation mandatory violated a obey it was feasible for him to DERING, Appellant, Alonzo W. causally injury resulted, and that posed issue is to his con- nevertheless WILLIAMS, in Bank- H. Trustee Everette tributory They heavily negligence. rely Dering, Bankrupt, ruptcy Eldon P. Gregorius Safeway on Steel Scaffold Appellee. Co., above. In that case there was a No. 20567. regulations. The violation certain said:

Court Appeals States Court United Circuit. Ninth regulations provide “These use for the of life work- belts life lines where 11,May pro- men or ‘crawl out thrustouts’ jecting However, the beams. evidence that,

was unanimous in this case prevailing conditions, the use safety

these practical measures would be imperil rather than safety plaintiff.”

sure the Supreme

It is that the evident Court undisputed

concluded from the regu-

that at time of the accident

lation was not contrast, in that In case. it is clear regulation pertinent cal- here help safety

culated to employee. insure the regulation impose not did

any impractical requirements. unsafe or

Indeed, compliance had there been there been no accident. dealing here We claim with a employee against

asserted

employer on this who record could well cleaning be found to have ordered the ac- tivity. against This action is the manu- charged,

facturer it is not nor any charge it,

there

knowledge Thus, of the custom. there

is no reason to that a case

Case Details

Case Name: Stephen A. Walsh, in No. 15639 v. Miehle-Goss-Dexter, Inc., in No. 15640 v. Edward Stern and Co., Inc

Court Name: Court of Appeals for the Third Circuit

Date Published: May 12, 1967

Citation: 378 F.2d 409

Docket Number: 15839, 15640

Court Abbreviation: 3rd Cir.