Schnackenberg, Knoch and Swygert, Circuit Judges.
Plaintiff, Louis Tantalo, brought this action in the United States District Court to recover damages for personal injury allegedly caused by the negligence of the defendant, Arvin Industries, Inc., in binding its automobile tailpipes together for shipment to a purchaser.
Plaintiff alleged in its complaint that he was employed in loading and unloading trucks at the terminal of his employer, Bell Lines, Inc., in Pittsburgh, Pennsylvania. The defendant shipped a number of bundles of tailpipes from its Seymour, Indiana, facility to a warehouse of Ford Motor Company in West Mifflin, Pennsylvania, wired together in bundles of five. These bundles of tailpipes arrived at the terminal of Bell Lines on or about January 15, 1962.
Plaintiff had previously handled tailpipes manufactured by the defendant, which were bundled in the same way, over the several years of his employment. He testified that he had previously experienced the breaking of the wire fastenings, and he knew they were subject to breaking while being handled. He testified that when directed to do so by his supervisor, he had balked at helping to remove the tailpipes from a trailer because he saw no reason to unload them only to reload them a short time later. He did not protest on the score of any risk or danger, although he testified that such risk was in his mind at the time. The unloading was accomplished without incident, and plaintiff began to reload another trailer with cartons of miscellaneous items and bundles of tailpipes. When that trailer was loaded as high as plaintiff's head, he tried to throw a bundle of tailpipes on top of the load. As he was lifting the bundle up, it broke apart. He was not sure whether the wire broke or whether it slipped off the end of the bundle. One pipe struck him in the leg. He testified that he worked the rest of that day and the two following days, but that on the third day after the incident, he saw a doctor. He learned then that he had a ruptured artery in the leg. Ultimately, his leg had to be amputated.
The jury brought in a verdict for the defendant, and this appeal was taken.
The sole witness to the occurrence which allegedly resulted in plaintiff's loss of his leg was the plaintiff himself. At the trial, plaintiff testified that he was under the influence of narcotics at the time of the accident and also at the time of the trial.
Leslie A. Seversen, who had been engaged in the field of packaging and material handling for 35 years, testified that the established industry practice in 1962 was to wire pipe together in bundles of 3 and 5; that most firms used 16, 17, or 18 gauge wire, and that the defendant was the only firm he knew which was using the heavier 14-gauge wire at that time. It was his expert opinion that the defendant's method of securing the pipes together for shipment was adequate.
Wallace F. Benson, an engineering expert witness, testified that the wire and method used by the defendant produced a safety factor of 5.5 and that a factor of only 3 would have been adequate.
In the course of pretrial discovery, plaintiff addressed a number of interrogatories to the defendant, which included the following:
"10. Please state the exact manner in which tailpipes were packaged or bundled which were shipped by Arvin Industries, Inc. to their customers including Ford Motor Co. in West Mifflin, Pennsylvania at or about the time the accident herein alleged.
a. During what period of time were tailpipes so packaged or bundled.
b. Has there been any changes made at any time in the bundling of tailpipes, if so when and for what reasons ...