(concurring).
From their answers to interrogatories 4 and 5, the jury found Beryllium was negligent in its operation of the skip hoist and that this negligence was a proximate cause of Iaeurci’s death.1 But this negligence would result in no liability against Lummus. The court, however, addressed to the jury an interrogatory which, if answered affirmatively, would permit the jury to impose liability on Lummus even if it found that Beryllium were negligent, namely, “did Lummus have strong reason to believe that Beryllium or its employees would act negligently and thereby create an unreasonable risk of harm?”2 The'' “strong reason to believe” theory is relevant because, as stated in Comment m, section 290, Restatement of Torts, where a chattel is turned over to another (here Lummus to Beryllium) : “In such case, the person who assumes control is usually alone responsible, not only for the use to which he puts his land or chattels, but *874also for his failure to remove any dangerous conditions existing when he takes control, unless the actor has strong reason to expect the third person to misuse the land or chattels or to fail to remedy the dangerous condition.” In other words, Beryllium’s negligence would relieve Lummus of liability unless Lummus had strong reason to believe that Beryllium would act negligently. Furthermore, the jury were told that this “strong reason to believe” exception presented “one of the crucial issues in the case.” Throughout the charge the court stressed the fact that control of the plant by Beryllium would not make it “solely responsible” if “Lummus had strong reason to expect that Beryllium * * * would be negligent in its operation and management of the plant”; that plaintiffs had to prove by a fair preponderance of the credible evidence that the defendant had strong reason to expect Beryllium to be negligent in its operation and management of the plant; and that if Beryllium were negligent in its supervision of its employees working in connection with the skip hoist or in failing to adopt a locking instead of a tagging system, then the jury should render a defendant’s verdict unless Lummus had strong reason to believe that Beryllium would be negligent in these respects.
The jury found that Beryllium was negligent and that this negligence was a proximate cause of Iacurci’s death. They also found that Lummus had strong reason to believe that Beryllium would act negligently, thus bringing the case within the exception so stressed by the court. However, a careful examination of the record reveals no proof whatsoever that Lummus had any reason — much less a strong reason — to believe that the employees of Beryllium would act negligently in their operation of the hoist. If in its normal operation an employee was required to stand beside the bucket and remove its contents manually by putting his head into the bucket, then and only then would the question of placing some device protective against injury arise. When the hoist was in operation, no employee was required to be or should have been in the pit where he might have had an opportunity to commit some negligent act. To take a sample from the interior of the bucket when the hoist was not in motion required the material to be obtained by some device which would enter the bucket. Someone or something had to reach inside the bucket. There was no proof, however, that regular sampling was a known requirement of operation. Yet to send to the jury the question of attributing negligence in the design of a machine which would not enable the contents of the bucket to be removed without “a person [putting] his head over the bucket and into the skip hoist shaft” is to assume that this act of Beryllium’s employee was a part of the machine’s normal operation.
The “strong reason to believe” theory must be related to some specific operation. It would be difficult to imagine any machine with revolving parts which could not be the cause of injury if some part of the body were brought into contact with a whirling knife or enmeshed in rotating gears. A machine possessing every safeguard in normal operation could scarcely be designed so as to avoid the necessity of a repairman touching it or putting his hands into it while making repairs.
Although the jury did not attribute any negligence of design to inadequate locking devices or control buttons, there is proof (and none to the contrary) that the hoist as designed had switch locks. That Beryllium chose to use tags instead of actual locks cannot be attributed to, or justify a conclusion of, a faulty design.
§ 398 of the Restatement of Torts provides :
“A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel lawfully or to be in the vicinity of its probable pse for bodily harm caused by his failure *875to exercise reasonable care in the adoption of a safe plan or design.”
The critical issue under this section is whether the hoist was so designed as to be “dangerous for the uses for which it is manufactured.” The manufacturer was entitled to expect that the user would use the hoist “lawfully.” On its part, the manufacturer was charged with a duty “to exercise reasonable care in the ad op-? tion of a safe plan or design” so as to avoid bodily harm to those using it or “in the vicinity of its probable use.” The use for which the hoist was intended was to convey the beryllium mix within a sealed machine from one place to another. It was not dangerous for this purpose. While in operation, no one was intended to be “in the vicinity.” The hoist thus met the requirements of proper design for its intended purpose.
Despite the expectation of lawful use expressed in section 398, plaintiffs argue that Lummus should have considered the situation which resulted in the accident as “expectable action” (Sec. 302(b)) and should have known the habits of human beings. However, this assumption of knowledge is qualified by the words “in so far as they are matters of common knowledge at the time and in the community” (Sec. 290).
Recently the Third Circuit in Smith v. Hobart Manufacturing Company, 302 F.2d 570 (1962) in a machine design case had occasion to review the Pennsylvania law on the subject of manufacturer’s liability. A meat grinding machine was equipped with a safety guard. The purchaser had removed the guard, an act held to have been negligent. Smith, an employee of the purchaser, was injured by the machine. The Court of Appeals posed the question submitted by the trial court to the jury under the doctrine of foreseeability: “Did Hobart [the manufacturer] expect or should it have expected that Holiday [the purchaser] would remove the guard and operate the machine without it ?” It answered the question by saying: “We think that a Pennsylvania Court would hold that, on the evidence presented in this case, a trial court should not have left that question for the jury to decide” (p. 574). Referring to Tua v. Brentwood Motor Coach Co., 371 Pa. 570, 92 A.2d 209 (1952) and after quoting Comment m to § 290 of the Restatement of Torts, it continued: “In our opinion, a Pennsylvania Court would conclude that there was not enough evidence from which the jury could infer that Hobart had reason,' let alone strong reason, to expect that Holiday would remove the guard and operate the machine without it”, (p. 574). The court concluded: “Hence, under the facts shown, Hobart owed no duty to Smith for the injuries resulting from the unanticipated misuse of the grinder”, (P. 575). j
In the Tua case, supra, the Pennsylvania Supreme Court had said: “Want of ordinary care consists in failure to anticipate what is reasonably probable, not what is remotely possible.”
Shortly after Smith v. Hobart Manufacturing Company, supra, in Goldsmith v. Martin Marietta Corporation, D.C., 211 F.Supp. 91 (1962), the claim was made that an airplane crash was caused by the alleged negligent design by the Bendix Corporation of a “caging switch” without an adequate guard to prevent its accidental actuation. In that case there was intervening negligence by others as there was in this case by Beryllium. The court asked the question: “Is the mere designer of an item, who can foresee the obvious danger of negligent use and who warns against same, liable for failing to provide in his design a safety device to protect against such negligence?” and answered it in the negative. Dealing with the Pennsylvania law, the court said: “Under the law of Pennsylvania, where a second tort-feasor has become aware of the danger created by an original tort-feasor and nonetheless thereafter brings about an accident by his own independent act, the original tort-feasor is relieved of,all liability” (p. 95). The court recognized the “strong reason to expect” theory expressed in comment m, Sec. 290, but said that “In our opinion, a Pennsylvania court would conclude, as *876a matter of law, that Bendix did not have strong reason to expect and anticipate the peculiar configuration of all of the cix*cumstanees alleged by the plaintiffs to have conspired to have produced the losses complained of: * * *” (p. 97).
An a fortiori situation is px-esented here. There is no claim that the hoist was defective in any way. There were switches which were adequate to prevent activation unless they were negligently thrown by Beryllium’s employees. Furthermore, the danger was obvious. lacurci’s own words established this fact. The risk was apparent.
Lummus had no notice of any likelihood or of even the possibility that Beryllium might so disregard the safety devices that an employee in the pit might be subjected to the danger of the hoist being set in motion. No proof of prior unsafe practice was offered. See Muller v. A. B. Kirschbaum Co., 298 Pa. 560, 148 A. 851 (1930). In the absence of any such notice or any other proof fx-om which it could be said that the manufacturer should X'easonably have foreseen that Beryllium would send an employee into the pit to lean over the bucket without using the available safeguards, it should not be subjected to liability. See Mannsz v. Macwhyte Co., 155 F.2d 445, 3 Cir., 1946, affirming judgments entered on directed verdicts in favor of defendant manufacturer in actions removed from the state court in Pennsylvania upon the ground that Section 395 was adhered to by the Supreme Court of Pennsylvania and that the allegedly defective wix'e rope had not been used for the purpose for which it was intended. Nor was there any evidence that during the shakedown period prior to Iacurci’s death, Lummus had observed or been made aware of any conduct on Beryllium’s part from which the conclusion could have been drawn that Lummus had any reason (much less strong reason) to believe that Beryllium would be negligent in its supervision of its employees or careless in its enforcement of safety precautions or regulations.
The event which resulted in Iacui'ci’s death was no part of the operation for which the hoist was designed. If the hoist was negligently designed, its danger to persons operating it or in its vicinity must be tested by its normal and expected functioning. Had Beryllium chosen to order an employee to expose himself to dangex', while the machine was operating, by performing some task not connected with its regular or intended operations, liability could not have been attributed to negligence of design. The decision to order Iacurci to obtain a sample at the time and place he did was exclusively that of Beryllium — a decision which Lummus had no opportunity to guard or design against. It was not even remotely foreseeable.
Although any injury, particularly resulting in death, is to be deplored, liability therefor should be imposed only upon the persons or cox'porations responsible for the injury. Clearly Beryllium was negligent. The jury has so held; the proof justifies such a conclusion. But where the record is devoid of any proof which could support a finding that the design of the machine was the cause of the injury, fundamental principles of law (and justice) do not pexroit a verdict against one not responsible for it.
. “4. Are you persuaded by a fair preponderance of the credible evidence that the Beryllium Corporation or any of its employees was negligent with respect to the operation, of the skip hoist on September 28, 1957?
X
Yes No
“5. If the answer to Question 4 is ‘Yes,’ are you persuaded by a fair preponderance of the credible evidence that the negligence of the Beryllium Corporation or its employees was a proximate cause of the death of Lawrence Iacurci?
X
Yes No”
. “7. If the answers to questions 4 and 5 are both ‘yes,’ did Lummus have strong reason to believe that Beryllium or its employees would act negligently and thereby create an unreasonable risk of % harm?
X
Yes No”