Lewis C Barbe Expert - Wagner Mining Equipment Case

667 F.2d 402
Patricia A. HOLLINGER, Administratrix of the Estate of
Germaine S. Hollinger, Deceased, Appellant,
vs.
WAGNER MINING EQUIPMENT COMPANY, A Division of Paccar,
Inc.
No. 81-1359.
United States Court of Appeals,
Third Circuit.
Paul J. Senesky (argued), Galfand, Berger, Senesky, Lurie & March, Philadelphia, Pa., for appellant.
David L. Grove (argued), Montgomery, McCracken,
Walker & Rhoads, Philadelphia, Pa., for appellee; David N.
Hofstein, Philadelphia, Pa., of counsel.
Before ALDISERT, HIGGINBOTHAM and SLOVITER, Circuit Judges.
OPINION OF THE COURT
SLOVITER, Circuit Judge.

ISSUE
1 This is an appeal from the grant of summary judgment in favor of the defendant, Wagner Mining
Equipment Co. (Wagner). In this diversity action plaintiff seeks damages for the death of her
decedent,Germaine S. Hollinger (Hollinger), who was killed on May 27, 1977 at an underground mine
operated by Bethlehem Mines Corp. (Bethlehem) in Morgantown, Pennsylvania, after being struck by a
scooptram' operated by another Bethlehem employee, Irvin Hartz. The scooptram was manufactured by
Wagner in1969 and was put into operation in November of that year by Bethlehem.
2 Plaintiffs claim, which evolved in its present form during discovery, is that the scooptram was
Sold in an unsafe condition as defined by section 4o2A of the Restatement (Second) of Torts2 because it
was not equipped with an automatic warning device at the time of its sale. Wagner moved for summary
judgment, essentially contending that the undisputed facts prove that the alleged defect did not cause
Hollinger's death. The district court granted summary judgment to Wagner, finding that no genuine issue
exists as to the material fact that "the decedent saw and heard the approaching scooptram," and
therefore that "the presence or absence of any audible or visual device, whose sole function would have
been to alert the decedent that the scooptram was coming, could not have caused the accident...."
Hollinger v. Wagner Mining Equipment Co., 505 F.Supp. 894, 899 (E.D.Pa.1981). The court held in the
alternative that even if causation could be established, there could be no liability imposed on the
manufacturer under section 4o2A(1)(b) of the Restatement (Second) of Torts because Bethlehem had
removed the operative manual horn with which the scooptram was originally sold, thereby effecting a
"substantial change" in the scooptram's condition. Id. at 900-02. We find that summary judgment on either
of these grounds was inappropriate on the record before the district court and remand.
II. FACTS
3 The following facts are not in dispute. At the time of the accident, Hollinger and his helper, Rump,
were working in the "607 East Production Drift" of the Bethlehem mine along with Hartz, who was
operating the scooptram. The diagram in the record of this portion of the drift shows a main tunnel at
least 10 feet wide, off the north side of which were three entries, numbered, from west to east, 03, 02 and
01. More than 5o feet east of entry 01 was another small entry in which was located an explosive storage
box. To " u Rhe farthest east was the water valve from which the scrubber tank of the scooptram was
filled. Across the tunnel from entry 01 (i.e. to the south of that entry) was a water drainage manway. It
was a common practice to assign three persons to work in one production drift. Hollinger and his helper
were drilling and blasting oversized chunks of ore which had been placed in the 03 entry. The third
employee, Hartz, the scooptram operator, was drawing muck from the 01 and 02 entries and dumping it

at a point west of the 03 entry. Hollinger left his helper in the o3 entry and walked east in the direction of
the 01 entry and the water drainage manway located directly across the tunnel from the 01 entry. At
roughly the same time, Hartz noticed that the scrubber tank of the scooptram was empty. In order to
refill the tank, he proceeded towards the water valve, located approximately 102 feet east of the 01 entry.
As he was proceeding east in the tunnel, Hartz saw Hollinger standing at the entrance to the water
drainage manway on the right side of the tunnel across from the 01 entry. Hartz testified that Hollinger
turned to face the scooptram, that he saw the light on Hollinger's helmet, and that such a turn was in
accordance with standard mine practice.
Hollinger then stepped into the water drainage manway. At the time of this sighting, the scooptram was
at a point between the 02 and o3 entries, approximately 100 to 150 feet away from the entrance to the
water drainage manway. The scooptram was moving at approximately five miles per hour. Hartz was
unable to see Hollinger or the entrance to the drainage manway again as he proceeded further down the
tunnel,due to the fact that the driver's seat was located on the left side and the large scoop obscured his
vision of the right side of the vehicle. As he passed the 01 entry, Hartz felt that the scoop was dragging
and he consequently lifted the bucket a few inches and proceeded to the water valve. Upon reaching the
water valve, Hartz looked back and saw Hollinger's body lying in the drift.
III. SUMMARY JUDGMENT
5 Rule 56 of the Federal Rules of Civil Procedure provides that a trial court may enter summary
judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." We have characterized summary judgment as " 'a drastic
remedy' ", and have made clear "that courts are to resolve any doubts as to the existence of genuine
issues of fact against the moving parties." Ness v. Marshall, 660 F.2d 517 at 519 (3d Cir. 1981) (quoting
Tomalewski v. State Farm Life Insurance Co., 494 F.2d 882, 884 (3d Cir. 1974)). Moreover,"(i)nferences to
be drawn from the underlying facts contained in the evidential sources submitted to the trial court must
be viewed in the light most favorable to the party opposing the motion." Goodman v.Mead Johnson &
Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 5o L.Ed.2d 748 (1977). "On
review the appellate court is required to apply the same test the district court should have utilized
initially." Id.
Proximate Cause
The first basis for the district court's grant of summary judgment was that the absence of an automatic
warning device could not have caused the accident "because the decedent saw and heard the
approaching scooptram." 505 F.Supp. at 899. The primary basis for this finding was the court's apparent
inference that since there was evidence that Hollinger was aware of the scooptram's approach shortly

before the accident, he remained aware of it up until the moment of impact. At his deposition, Hartz
testified that when the scooptram was passing the o3 entry, he saw Hollinger across from the 01 entry
and he saw him turn and acknowledge the scooptram's approach. However, there was also testimony,
apparently uncontradicted, that the distance between the scooptram and Hollinger at this point was 100
to 150 feet. Weik Dep. at 29. Hartz testified that he was traveling at no more than five miles per hour at
the time, Hartz Dep. at 34-35; thus, at least 14 to 20 seconds must have elapsed between the time of
sighting and the time of impact. Therefore, even if Hartz' testimony establishes that Hollinger was aware
of the scooptram when it was 100 to 150 feet away, it fails to establish conclusively that Hollinger was
aware of the scooptram immediately before the impact.
7 Other evidence may suggest a different inference. The exact point of impact is unknown, but it is
undisputed that Hollinger's body and effects were found in the tunnel east of the 01 entry, in the vicinity
of the explosives storage box. Although Hollinger did not say anything to his co-worker before leaving the
o3 entry, a possible inference from the evidence is that Hollinger was going for more blasting powder
from " u Rhe explosive storage box, located between the or entry and the water valve. Bethlehem
Accident Report; Weik Dep. at 16, 23-24.3 It is also apparently undisputed that the scooptram's route on
this occasion, proceeding past the or entry and on to the water valve, was a deviation from its previous
pattern of turning into the 02 or or entry to continue its mucking operations.
MESA Report, App. At 8ra; Weik Dep. at 17, 35-36. In view of this evidence, a jury might reasonably
conclude that even if Hollinger had seen the scooptram when it was passing the o3 entry, he assumed
that it was going to turn into the 02 or or entry as it had previously done, and therefore he continued to
walk east towards the explosives storage boxy with his back to the scooptram. Even if Hollinger heard the
scooptram's continued approach, he may have been unaware of its exact location and unconcerned if he
believed that it was going to turn off before reaching him.
The district court also stressed the evidence that the scooptram "lit up like a Christmas tree" and had a
noise level comparable to a diesel truck,6 and that Hollinger "had no known hearing or seeing problems."
505 F.Supp. at 899. This apparently led the district court to conclude that a reasonable jury must
necessarily infer that the noise and light generated by the scooptram in normal operation would by itself
have been sufficient to have alerted Hollinger to its approach.
g However, there was testimony by plaintiffs expert, Lewis Barbe, that the normal operating noise
of the scooptram, while loud, was "subconsciously nullified by people in mines," who "don't pay any
attention because they assume the operator can see them." This was the basis for Barbe's conclusion that
"(s)ome type of a biodirectional alarm," set at a different decibel rating or frequency so as to identify it as
a danger signal, was necessary to alert miners to the scooptram's approach and to the fact that the driver
could not see where he was going. Barbe Dep. at 10-11. The sound and light generated by the scooptram
itself were apparently not considered adequate warning by the Federal Mining Enforcement and Safety
Administration (MESA) since its accident report recommended that scooptrams be equipped with audible
warning devices. App. at 83a.

We recognize that under the circumstances of this case, plaintiff will not be able to produce any evidence
of Hollinger's actions or state of mind during the crucial 14 to 20 second period.? Nonetheless, given the
strict standard for summary judgment, we believe that the district court could not conclude as a matter of
law that Hollinger was aware of the scooptram's presence immediately before the impact. Since a jury
could reasonably conclude that he was not aware of the scooptram's presence at that time, it could also
conclude that an automatic warning device would have alerted Hollinger to the scooptram's approach,
and thus could have prevented the accident. Ordinarily a jury must determine the issue of proximate
cause. We find that in this case plaintiff produced sufficient evidence to pose a triable issue.C.
Substantial Change
The alternate ground for the district court's grant of summary judgment, the "substantial change" in the
scooptram subsequent to Wagner's sale, was based on the undisputed evidence that the scooptram had
been equipped with a manual horn at the time of sale but that the horn had been removed sometime
prior to the accident. The issue of substantial change, like proximate cause, is generally one for the jury.
Merriweather v. E.W. Bliss Co., 636 F.2d 42, 44 (3d Cir. 1980). However, where no genuine issue of
material fact is presented, the court may grant summary judgment. There is no dispute that the removal
of the manual horn constituted a change. But "(i)t is obvious that not every change in a vehicle will relieve
a manufacturer of liability" under section 402A of the Restatement (Second) of Torts. For a change to be
considered "substantial" for this purpose, "the change must have some causal connection with the
accident." Dennis v. Ford Motor Co., 332
F.Supp.901, 903-04 (W.D.Pa.1971), affd, 471 F.2d 733 (3d Cir.1973). In other words, if the presence of a
manual horn would not have prevented the accident then its removal cannot be considered a substantial
change so as to preclude liability. See Blim v. Newbury Industries, Inc., 443 F.2d 1126, 1128 (loth Cir.
1971) (Aldisert, J., sitting by designation); Comment, Substantial Change: Alteration of a Product as a Bar
to a Manufacturer's Strict Liability, 8o Dick.L.Rev. 245, 250-51(1976).
3 In considering the significance of the removal of the manual horn, the district court found that
Hartz had in fact seen Hollinger "with ample opportunity to blow a horn if one had been mounted on the
vehicle at the time." 505 F.Supp. at 901. The critical question, however, is not whether Hartz could have
blown the horn but whether he would have blown it. As to that, plaintiffs evidence shows two separate
bases on which a jury question has been made out.
Plaintiffs most vigorous argument is directed to the structure of the scooptram itself. The thrust of
plaintiffs claim is that a manually-activated warning device, such as a horn, would be ineffectual
rbecause the scooptram is constructed so that the vision of the driver who is seated on the left-hand side
is restricted by the placement of the large scoop. Plaintiff asserts that in such a situation only an
automatic warning device, which is not dependent for its efficacy on the driver seeing whether anyone is

in the path of the scooptram, can adequately protect those working in the vicinity of the vehicle. It is
undisputed that after Hartz sighted Hollinger he was no longer able to see the area of the tunnel in which
Hollinger had been. If Hartz could not have seen that Hollinger was no longer in a position of safety, a jury
might conclude that he would have had no reason to have sounded a manual horn. Indeed, Assistant
Mine Superintendent Weik testified that "if there would have been a horn on the scoop, I doubt whether
Hartz,the operator, would have blew (sic) the horn." Weik Dep. at 30.
The other difficulty with relying on the manual horn in this case is Hartz' testimony, relied on by
Wagner, that Hollinger was aware of the scooptram's approach. As noted above, Hartz testified that as he
passed the 03 entry, he saw Hollinger acknowledge the scooptram's approach and step into the water
drainage manway, and he assumed that Hollinger was waiting for the vehicle to pass. Hartz Dep. At 23-24,
31, 33, 38. Again, if Hartz assumed Hollinger was aware of the scooptram, a jury might conclude he would
have had no reason to use the manual horn. Parenthetically, we note that there is no testimony by Hartz
that he would have used the manual horn if it had been on the scooptram. Neither party asked him that
question on his deposition, and we cannot assume what the answer would be were he asked at trial. We
merely find that on the present state of the record, the issue remains open.
Our function in reviewing a grant of summary judgment is to ascertain if there is any genuine issue of fact
or permissible inference from fact which must be left to the jury. In view of the evidence, a jury might
reasonably conclude that the presence of a manual horn would not have prevented the accident. In that
event, its removal would not have constituted a substantial change sufficient to preclude liability under
section 402A.
7 Hanlon v. Cyril Bath Co., 541 F.2d 343 (3d Cir. 1975), and Schreffler v. Birdsboro Corp., 490 F.
2d 1148 (3d Cir. 1974), relied on both by Wagner and the district court, are distinguishable. In Hanlon,
plaintiff employee was injured when he accidentally activated a press brake from which he was
attempting to extract a piece of metal that had become stuck. The press brake had originally been
equipped with a foot pedal that required the operator to exert a considerable amount (sixty-five pounds)
of pressure to activate.
The employer had substituted a much more easily activated, movable foot switch similar to a Dictaphone
foot pedal. In sustaining the jury's verdict for defendant, we held that "(i)n relation to danger of
accidental activation, this substitution of a significantly different and much more sensitive starting
mechanism was a 'substantial change in the condition in which ... (the press brake) was sold,' within the
meaning of section 402A." 541 F.2d at 345.
8 In Schreffier, plaintiff was injured when a load of hot steel billets which had been accidentally
released by a fellow employee pushed him against the machine on which he was working. Plaintiff had
been standing at a "transfer table" attaching chains to a load of steel in preparation for its removal by a
crane. The transfer table, as originally sold by defendant manufacturer, consisted of a series of parallel

rails with gaps between them. The employer, however, had filled these openings with steel plates to
enable the transfer table workers to use them as walk-ways. We affirmed a directed verdict for defendant
on the ground that the transfer table was "so substantially modified that it was then feasible to use the
equipment in a manner different from that which would have been expected from observation of the
original design." 490 F.2d at 11 53. In both Hanlon and Schreffier, there was little doubt that the product
as originally designed would have prevented the accident, and that the modification made by the
employer was a proximate cause of the injury. In this case, however, plaintiff contends that the manual
horn with which the scooptram was originally equipped would not have prevented the accident, and
therefore that its removal could not have contributed to Hollinger's death. Thus, there is a factual issue
presented as to whether an essential ingredient of substantial change, a causal connection between the
modification and the resulting injury, which was patently present in Hanlon and Schreffler, is missing in
this case.
IV. FEASIBILITY
When Wagner contends that even if we find that there are jury issues as to causation and substantial
change, we should affirm the grant of summary judgment because plaintiff failed to demonstrate any
genuine issue of fact as to whether the absence of an automatic warning device rendered the scooptram
"defective" and "unreasonably dangerous" as those terms are defined in section 402A of the Restatement
(Second) of Torts. Although Wagner suggests that the district court "found" that the scooptram was not U
Pdefective" or "unreasonably dangerous", we see no such "finding" in the district court's opinion. In the
portion of the opinion devoted to the substantial change issue, the court expressed doubt as to the
feasibility of an automatic warning device. That discussion also touched upon the issue of proximate
cause. The relevant portion reads:
(P)laintiff has not demonstrated how such (an automatic warning) device would operate. Her
proposedexpert testified at his deposition that such a device would operate independently of the
operator whenever there was a blind spot. However, he conceded that there was always a blind spot on
the scooptram. The expert also confessed that he did not know how such a device could be designed.
Assuming for the moment that he would qualify as an expert, his unsupported conclusions will not create
a genuine issue as to any material fact. More importantly, this same expert acknowledged that even if an
automatically activated audible device operating independently of the driver were practicable, and even if
the scooptram had been equipped therewith, he could not conclude that the accident would have been
prevented by installation of one. In short, plaintiff has not produced any evidence suggesting the
feasibility of designing an automatic warning device, whether it would have had any positive effect, and
whether the use of this device would have would have prevented the instant accident.
505 F.Supp. at 902-03 (footnotes omitted). The district court did not explicitly state that this was an
independent basis for the entry of summary judgment, as it did with the other two holdings, and did not

relate the discussion of feasibility to the ultimate issue of whether the product was "defective" or
"unreasonably dangerous"; also it did not analyze all of the evidence plaintiff proffered on feasibility.
Therefore, we are reluctant to expand this brief and ambiguous passage into a separate basis for the
district court's grant of summary judgment.
We agree with Wagner that plaintiff has the burden of demonstrating that the automatic warning device
which she propounds was in fact feasible. "(I)n establishing that the design in question (is) defectie, the
plaintiff must offer proof of an alternative, safer design, practicable under the circumstances." Huddell v.
Levin, 537 F.2d 726, 737 (3d Cir. 1976) (interpreting New Jersey law of strict liability); Jeng v. Witters, 452
F.Supp. 1349, 1359 (M.D.Pa. 1 978 ), affd, 591 F.2d 1335 (3d Cir. 1979) (applying Huddell to interpretation
of Pennsylvania law).
'4 The evidence on this issue consists only of the deposition testimony of plaintiffs expert, Lewis Barbe. As
we read Barbe's testimony, it is unclear which of two possible types of automatic warning devices he was
describing: one which would selectively activate itself only when needed, or one which would activate
itself whenever the vehicle travels in a forward direction, the time when the driver's visibility is most
severely restricted.8 Wagner points to Barbe's inability to describe fully how a device such as the former
could be designed and argues that the other type of device would become ineffective because its signal
would be ignored over time. While the feasibility of a selectively activating device does seem somewhat
questionable to us, Barbe suggested some possibilities for such a design and testified that there were
similar devices commercially available, named a number of specific brands, and referred to other
underground equipment which is equipped with some type of automatic warning function. Barbe Dep. at
16-17, 23-26. As to a device which would operate simply on forward motion, Barbe rejected defense
counsel's suggestions that a continuously operating alarm would become part of the ambient light and
noise of the mine and thus be subconsciously ignored by those working in the area.
9 He testified that he had experience with vehicles equipped with warning devices which operated
"most of the time," id. at 29, and insisted that the sound made by such devices was distinguishable from
the noise of machinery which becomes part of the ambient sound level of the mine. Id. at 18-20.
10 Wagner offered no expert witness of its own to refute Barbe's testimony or to support its claim
that an automatic warning device was not feasible. While Barbe's testimony is at times lacking in
specificity and clarity, we must construe it in the light most favorable to plaintiff. Goodman v. Mead
Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S•Ct• 732, 5o L.Ed.2d 748
(1977). We find that the issue of the feasibility of an automatic warning device is a close one, particularly
because plaintiff has not provided a clear and concise diagram or verbal picture of the type of device it
posits. However, in face of the record before us, we cannot conclude that no genuine issue is presented.
11 The district court also included in the feasibility discussion the separate question of whether
plaintiff established that an automatic warning device would in fact have prevented Hollinger's

death. While plaintiffs expert acknowledged, as the district court emphasized, that he could not posit
ively state that the presence of an automatic warning device would have prevented the accident in this
case, he did testify that he had "a reasonable certainty" that it would have, based upon his knowledge
and experience that "these alarms really work and people do pay attention to them." Barbe Dep. at 21-
23. As the Oregon Supreme u p It is true there is no testimony that this accident would not have
happened if an alarm had been provided, but there seldom is such evidence in a case in which the charge
is failure to warn. It is sufficient to prove causation if there is evidence or the jury can draw an inference
that a warning is generally effective in preventing such accidents.
; 8 We agree with that approach, which is consistent with our earlier holding that on the record in this
case the issue of proximate cause is to be decided by the jury.
For the foregoing reasons, we will vacate the district court's grant of defendant's motion for summary
judgment, and remand for proceedings not inconsistent with this opinion. ALDISERT, Circuit Judge,
dissenting. The majority have concluded that the evidence before the district court presented a triable
issue in this proceeding in which appellant seeks to translate an accident in a coal mine into a products
liability case. I disagree. I will give appellant an A for effort, but, with the district court, I am of the view
that, on this record, the appellant's innovative theory cannot survive a motion for summary judgment.
Two major impediments prevent me from accepting appellant's convoluted theory, presented to Judge
Troutman in the district court and repeated before this court. Each impediment constitutes an
independent ground for granting the manufacturer's summary judgment motion. I first clear away the
semantic underbrush. The thrust of the plaintiffs case is that the manufacturer failed to equip the
scooptram with a warning device.
Appellant's expert conceded that a constantly operating alarm would be undesirable and instead
presented a vague specification for an ideal "automatic" alarm that would operate only when the
scooptram driver could not see people in the vehicle's path. Appellant's expert could not describe how
such a selectively actuated device would operate, but one must inevitably conclude that the driver would
have to activate it manually.1 This being the sole theory to submit the 402A design defect to the jury, I
have no difficulty oncluding that the manufacturer met this requirement precisely.
;4 Just as one may not hang a sign that reads, "this is a horse," around the neck of a cow and expect
onlookers to regard the animal as anything other than a cow, neither should one expect others to be
impressed by new labels for familiar pieces of machinery. The proposed quasi-automatic "warning
device"-manually activated when circumstances so require-is nothing more than a horn,2 and the
undisputed fact is that the manufacturer equipped the scooptram with a horn that was removed
sometime before the day of the accident. I would affirm the grant of summary judgment on this ground
alone. Even if this analysis is rejected on the theory that there is a difference between horns that are fully
automatic, quasi-automatic, and purely manual, the uncontroverted facts show clearly that a warning
device on the scooptram would not have prevented this unfortunate accident.

;6 The purpose of a warning device is to alert those not already aware that a danger is present. Hollinger
did not require warning: he had seen the scooptram coming toward him only seconds earlier. The
operator testified that Hollinger saw the scooptram and, acknowledging its approach, signalled to the
operator.
3 During the short interval between that signal and the impact, the machine was effectively its own
warning device, reminding anyone nearby of its presence. The operator characterized the scooptram as lit
up like a Christmas tree and producing a noise like a diesel truck.
; 7 Nevertheless, because it is not clear why Hollinger failed to get out of the machine's way, the
appellant would let this case go to trial. It is one thing to proceed with trial because evidence in support
of a summary judgment motion has been met by factual showings that raise a question of material fact; it
is quite another to ask a jury to speculate what the decedent might have been thinking and whether a
hypothetical alarm might have made him alter his actions. The scooptram operator's testimony is the only
evidence that can be adduced on the causation issue. Appellant did not offer any testimony to counter
this in the district court, nor is there any suggestion that trial will produce additional evidence.
Accordingly, I would hold that whether the alleged design defect was the proximate cause of the death of
appellant's u p decedent was not a question warranting trial.
II For these separate reasons, I would affirm Judge Troutman's grant of summary judgment in favor of
themanufacturer. As defined by the district court, "A scooptram, also known as an LHD (load-haul-dump)
unit, is a trackless, low profile diesel powered vehicle used to transport earth and ore in underground
mines." Hollinger v. Wagner Mining Equipment Co., 505 F.Supp. 894, 895 n.i (E.D.Pa.1981)
2 Section 4o2A provides in relevant part:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer
or to hisproperty is subject to liability for physical harm thereby caused to the ultimate user or consumer,
or to hisproperty, if the seller is engaged in the business of selling such a product, and it is expected to
and does reach the user or consumer without substantial change in the condition in which it is sold.
Pennsylvania has adopted section 4o2A. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).
3 According to Assistant Mine Superintendent WeikRump was Hollinger's helper, and they were
preparing some large chunks for secondary blasting ... and they didn't quite have enough powder to
complete the number of chunks they were going to blast, and at that point, Rump-Hollinger didn't say
anything to Rump that he was going for more powder, he just left, but Rump knew that he was just going
for more powder. Weik Dep. at 23-24
4 There was testimony, however, that the scooptram had gone to the water valve on "a couple" of
other occasions earlier in the shift. Hartz Dep. at 39

5 Hartz testified that he saw Hollinger step into the water drainage manway across from the or
entry, and assumed that he was doing so to get clear of the scooptram. However, Hartz indicated that
there might have been other reasons for Hollinger to step into the manway which would be consistent
with his resumption of walking towards the explosive storage box-for example, to "wash his glove." Hartz
Dep. at 23-24, 33, 38
6 The district court emphasized Hartz' testimony that the noise level was even higher when the
scrubber tank was dry. 505 F.Supp. at 899. However, there was also testimony that the condition of the
scrubber should have had no effect on the noise level. Weik Dep. at 27
7 It is well-established that in the absence of evidence to the contrary, the decedent in a wrongful
death action is presumed to have been exercising due care at the time of the accident. See, e.g.,
Baltimore & Potomac R.R. v. Landrigan, 191 U.S. 461, 473-74, 24 S.Ct. 137, 140, 48 L.Ed. 262 (1903); Webb
v. Martin, 364 F.2d 229, 231-32 (3d Cir. 1966); Morin v. Kreidt, 310 Pa. 90, 97, 164 A. 799, 800-01(1933)
8 Because of the placement of the large scoop at the front of the scooptram, visibility of the driver
of the scooptram differs from that of drivers of other large vehicles, which require backup alarms. Barbe
testified that when the driver "is going in reverse and he is sitting right there and he can see where the
front is, you don't need (the warning device) because he can see right where he is going." Barbe Dep. at
17
9 Barbe responded: Absolutely not, because what you're saying does not happen. Experience
indicates just the reverse; that the more they hear these, the more they pay attention to them. « up It is a
hazard. It's like when they say, "Fire in the hole," and everybody starts yelling, "Fire in the hole,"
everybody then immediately knows and takes precautions and you can say that for ten years or fifteen
years and there are certain things that subconsciously activates a person and its been proven over a
period of time that these things work .... Barbe Dep. at 27-29.
10 In light of this testimony, we cannot agree with the dissent's statement that "(a)ppellant's expert
conceded that a constantly operating alarm would be undesirable." At 411. Moreover, the dissent
impinges on the role of the factfinder when it contends that "one must inevitably conclude" that a
selectively activating device would have to be operated manually by the driver, and would therefore
amount to "nothing more than a horn." At 411. Barbe expressly rejected the suggestion that a manual
horn would be an adequate substitute for an automatic warning device, and emphasized the distinction
between the two. Barbe Dep. at 16, 20-21. While the factfinder might properly choose not to credit this
testimony, we do not think that it is appropriate for this court to conclude as a matter of law that it must
"inevitably" do so, especially in light of the fact that Barbe's deposition is the only evidence on the
subject. The dissent has construed the admitted ambiguities of Barbe's testimony in the light least
favourable to the plaintiff, when our duty in reviewing the grant of defendant's motion for summary
judgment is to do quite the reverse

11 Plaintiff suggests that the district court improperly treated the question of whether a product is
"unreasonably dangerous" as one to be decided by the judge and not the jury, based on what plaintiff
asserts was an incorrect reading of the Pennsylvania Supreme Court's decision in Azzarello v. Black
Brothers Co., 48o Pa. 547, 391 A.2d 1020 (1978). Our review of the district court's decision convinces us
that it analyzed the propriety of summary judgment under the traditional standard of sufficiency of the
evidence to present a jury question, and not under a more relaxed standard, notwithstanding its
statement that Azzarello permits that approach. 505 F.Supp. at 898 & n.29. The court relied for its
statement on Bailey v. Atlas Powder Co., 602 F.2d 585,587-88 & n.3 (3d Cir. 1979), and Baker v. Outboard
Marine Co., 595 F.2d 176, 181-82 (3d Cir.1979), which do not discuss the countervailing precedent that a
federal court sitting in diversity is not bound by state law when the division of responsibility between
judge and jury is implicated.See Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 78 S.Ct.
893, 2 L.Ed.2d 953 (1958); Huddell v. Levin, 537 F.2d 726, 737 (3d Cir. 1976). In the posture in which this
case reaches us we need not decide this issue
Appellant's lawyer advanced the same theory at oral argument:
JUDGE ALDISERT: The automatic (warning device) would be used u
nder certain circumstances?
COUNSEL: Those circumstances where there was a deviation. You don't have to run it all day.
JUDGE ALDISERT: The theory then is that you should have an automatic warning device that would be
only used where the driver could not see in front of him?
COUNSEL: Absolutely and where he did not know where the people were.
2 Even pre-schoolers understand that a horn on a vehicle is sounded to announce the approach of
the vehicle. For those with a penchant for authority, the dictionary defines this type of horn as "c) a
device sounded to give a warning." Webster's New World Dictionary of the American Language (2d
College Ed.)
3 In his deposition, the scooptram operator responded to questioning as follows:
Q. Is it or was it a practice in the mine for miners who were on foot, when a scooptram was
approaching them, to turn their lights, (their) helmet lights in the direction of the scooptram?
A. Right, towards us.
Q. Is that what Mr. Hollinger did?
MR. SENESKY: Objection.
THE WITNESS: Yes.
App. at 130.
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