(dissenting).
I respectfully dissent. We should not usurp the function of the jury. Plaintiff introduced considerable evidence from which a jury might conclude that the skip hoist had been negligently designed. There was testimony indicating that the pit was too shallow, that it contained no light, that the switches were located far from the pit and there was no control in the pit itself, and that locking safety devices should have been installed. Both experts agreed that the pit could have been made safer, and Buff’s testimony was reasonably interpreted by the jury as proof that the necessity of putting the upper part of one’s body over the bucket created a dangerous condition. Surely Lummus could reasonably be expected to *877know that samples of the mix might not infrequently be required, and guard against such a disaster as occurred to Iacurei. If gain must be weighed against cost, the scales are in the hands of the jury, which had evidence before it that for $150, $30 for material and $120 for labor, an emergency switch could have been installed in the pit. On the interrogatories answered by the jury the verdict should be sustained.
Moreover, the verdict could be supported even if the jury had not checked any of the more specific findings. The interrogatory directed the jury to check which, if any, of the listed specific findings it had made in reaching the conclusion that the defendant had negligently designed the pit. It is quite conceivable on this record that the jury found that the equipment had been negligently designed in some fashion other than those five listed on the interrogatories.
Nor were the jury’s findings on intervening cause or contributory negligence without support in the record.1 ***Thus in Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517 (1949), where the Pennsylvania Supreme Court reinstated a jury verdict against the builder and installer of a natural gas storage tank, the court dismissed the contention that the gas company’s negligence in failing to inspect constituted an intervening act of negligence, quoting from Harper on Torts: “A negligent defendant can not escape liability because of a failure on the part of some third person to perform an affirmative duty which, if properly performed, would have enabled the plaintiff to avoid the risk created by the defendant’s negligence. The failure of the other to inspect adequately may make him liable to the party harmed, but it will not relieve the defendant whose negligence was responsible for the hazard in the first place.” 68 A.2d at 529. Here the jury found Beryllium negligent in failing to warn other employees in the vicinity that Iacurei was in the hoist pit, thereby triggering the defendant’s original negligence in designing the pit. If Beryllium’s delict was reasonably foreseeable, the defendant is not relieved from liability for creating the dangerous situation. See Shimer v. Bangor Gas Co., 410 Pa. 92, 188 A.2d 734 (1963); 2 Harper & James on Torts § 28.10 (1956).
The Supreme Court has been quite reluctant to permit jury verdicts to be upset. “Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.” Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520 (1944). Whether one applies a state or federal standard to test the sufficiency of evidence for the jury,2 the jury could reasonably conclude that Lummus was negligent and that Iacurci had exercised reasonable care for his safety under the circumstances.
I would affirm the orders and judgment of the District Court.
. Since tlie majority does not base reversal on any bolding that Iacurei was negligent as a matter of law, I do not discuss the evidence on that point.
. See Mercer v. Theriot, 377 U.S. 152, 84 S.Ct. 1157, 12 L.Ed.2d 206 (May 4, 1964), Evans v. S. J. Grooves & Sons, 315 F.2d 335, 342 (2 Cir. 1963). Cf. Shirey v. Louisville & Nashville Railroad Co., 327 F.2d 549 (5 Cir. 1964).