Wiesen v. Fred Hill & Sons Inc.

28 Pa. D. & C.4th 291
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedNovember 6, 1995
Docketno. 1975
StatusPublished

This text of 28 Pa. D. & C.4th 291 (Wiesen v. Fred Hill & Sons Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wiesen v. Fred Hill & Sons Inc., 28 Pa. D. & C.4th 291 (Pa. Super. Ct. 1995).

Opinion

GOLDMAN, J.,

h — l

On July 11, 1989, plaintiff Paul Wiesen was moving a vending machine on a hand truck from a warehouse onto a motor vehicle. The hand truck was designed and manufactured by defendant Stevens Appliance Truck Company, and distributed by defendant Fred Hill and Sons Incorporated. It had two main wheels, over which the vending machine balanced, and two smaller wheels (“second set of wheels”) which could be extended by the operator to assist in supporting the load. On the day of the accident, prior to moving the load, Wiesen extended the second set of wheels. As Wiesen walked backward across the warehouse floor, he pulled the vending machine on the hand truck. Wiesen experienced difficulty pulling the machine across a shallow lip in the floor and shortly thereafter was injured when the second set of wheels retracted and the vending machine fell over, pinning him underneath. He allegedly tore ligaments and menisci in his right knee. Wiesen investigated the accident scene on June 27, 1991, and photographed a hand truck of the same make and model [294]*294as the hand truck involved in the accident. He could not locate, and no one ever located, the actual hand truck involved in the accident, apparently through no fault of any party.

On July 11, 1991, Wiesen instituted this products liability action alleging that the hand truck was defectively designed. He sought compensation for his injuries as well as wage loss damages. A jury trial was held from April 11, 1995 to April 13, 1995. The jury returned a verdict in favor of defendants, finding that the hand truck was not defectively designed.

Wiesen filed a timely post-trial motion requesting a new trial. He contends (1) the jury verdict is contrary to the court’s charge; (2) the jury was influenced by extraneous matter; (3) the court’s charge concerning the unavailable hand truck confused the jury; (4) the court erred by precluding Wiesen’s counsel from asking venirepersons whether the unavailability of the actual hand truck would influence their verdict; (5) the court erred in providing the jury with photographic exhibits of the exemplar hand truck; (6) the court erred in allowing defendants’ expert to testify regarding hand truck operation, and in allowing defendants’ expert to answer an improper hypothetical question and (7) the court erred in allowing defendants to cross-examine Wiesen’s treating physician regarding written reports of physical therapists.

II.

Preliminarily, it should be noted that it is in the trial court’s sound discretion whether to grant a new trial. Dougherty v. McLaughlin, 432 Pa. Super. 129, 133, [295]*295637 A.2d 1017, 1019 (1994). In Pennsylvania, “[a] trial court may only grant a new trial when the jury’s verdict is so contrary to the evidence that it ‘shocks one’s sense of justice.’ ” Neison v. Hines, 539 Pa. 516, 520, 653 A.2d 634, 636 (1995) (quoting Kiser v. Schulte, 548 Pa. 219, 226, 648 A.2d. 1, 4 (1994)). In addition, a new trial is proper when the court committed an error of law which affected the outcome of the case. Pollock Industries Inc. v. General Steel Castings Corp., 203 Pa. Super. 453, 201 A.2d 606 (1964). In light of these standards, plaintiff is not entitled to a new trial.

A.

Plaintiff Paul Wiesen’s products liability action is premised on the argument that the hand truck lacked an inexpensive lock that would have prevented the hand truck’s second set of wheels from retracting from their extended position. Wiesen argues that this lock, if present, would have prevented his accident because the second set of wheels would not have retracted unexpectedly after he pulled the hand truck over the shallow lip in the warehouse floor. In support of his case Wiesen testified that he pulled the loaded hand truck while another warehouse employee, William Miller, pushed. Wiesen pulled the hand truck over the shallow lip in the floor, which measured approximately one quarter inch to one half inch deep. He tilted the hand truck slightly, to raise the second set of wheels off the floor, in order to pull them over the shallow lip. He then noticed the second set of wheels swinging into the retracted position as he pulled the truck over the shallow lip, and the loaded hand truck collapsed on top of him.

[296]*296On June 27, 1991, Wiesen investigated the accident scene with his engineering expert, Kenneth Taber. Taber could not locate the hand truck Wiesen used when he had his accident, and a warehouse representative stated that it was no longer available. Taber located and photographed a hand truck which Wiesen told him was similar or identical to the actual hand truck. Wiesen testified that the photographs showed a similar hand truck. The photographs were marked as plaintiff’s exhibits one through five, and Taber testified that the exhibits represented an exemplar hand truck that was identical to the hand truck used by Wiesen. On the basis of his investigation, Taber formed the opinion that Wiesen’s accident could have been prevented if defendant Stevens installed an inexpensive lock to keep the second set of wheels in the extended position.

Defendants contested Taber’s opinion, and presented their own expert, Wesley Byrd, the designer of the hand truck, who testified that the hand truck used by Wiesen, as manufactured, possessed a locking device to hold the second set of wheels in the extended position. Moreover, Taber testified on cross-examination that the exemplar hand truck in Wiesen’s photographic exhibits had been damaged or abused and was probably in active service at the time the photographs were taken. Taber testified that the damage to the exemplar hand truck rendered it unsafe for its intended use.

In addition, defendants contested Wiesen’s account of the accident. Defendants presented the warehouse worker, William Miller, who assisted Wiesen with the hand truck before the accident. Miller testified that he saw Wiesen pull a lever on the hand truck, that on [297]*297some models of the truck, released the second set of wheels from their extended and locked position. Miller testified that Wiesen pulled the lever in an attempt to release the second set of wheels from the shallow lip in the floor, in which the wheels were stuck. Wiesen disputed that the lever actually released the second set of wheels, and disputed Miller’s ability to see Wiesen’s motions just before the accident.

The jury received conflicting testimony on the alleged design defect and causation. It could have found for defendants on a number of theories: (1) that the hand truck had a lock and was not defectively designed; or (2) that Wiesen released the second set of wheels; or (3) that the hand truck was damaged and the damage caused a malfunction, causing the accident. Seven out of the eight jurors answered the interrogatory, “Was the appliance truck defectively designed by Stevens Appliance Truck Company?” in the negative. (N.T. 390.)

The jury is privileged to assess the evidence presented and to weigh the credibility of witnesses. Dawson v. Fowler, 384 Pa. Super. 329, 333, 558 A.2d 565, 567 (1989), allocatur denied, 523 Pa. 636, 565 A.2d 445 (1989). It may also weigh the credibility of expert witnesses.

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Bluebook (online)
28 Pa. D. & C.4th 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiesen-v-fred-hill-sons-inc-pactcomplphilad-1995.