Schindley v. Allen-Sherman-Hoff Co., 10217.

• Decision Date: 26 August 1946
• Docket Number: No. 10217.,10217.
• Citation: 157 F.2d 102
• Parties: SCHINDLEY v. ALLEN-SHERMAN-HOFF CO.
• Court: U.S. Court of Appeals — Sixth Circuit

157 F.2d 102 (1946)

SCHINDLEY v. ALLEN-SHERMAN-HOFF CO.

No. 10217.

Circuit Court of Appeals, Sixth Circuit.

August 26, 1946.

Don J. Young, Jr., of Norwalk, Ohio (Don J. Young, Jr., of Norwalk, Ohio, of counsel; Young & Young, of Norwalk, Ohio, on the brief), for appellant.

W. K. Sullivan and Thos. E. Lipscomb, both of Cleveland, Ohio (Thompson, Hine & Flory and Thomas E. Lipscomb, all of Cleveland, Ohio, and Mancill, Cooney, Ott & Semans and Lambert Ott, Jr., all of Philadelphia, Pa., on the brief), for appellee.

Before HICKS, ALLEN, and MARTIN, Circuit Judges

HICKS, Circuit Judge.

Suit for damages for personal injuries. Appellant complains of a directed verdict in favor of appellee.

Appellee, The Allen-Sherman-Hoff Company, has for many years manufactured equipment for use in connection with large boilers in both municipal and industrial power plants. It contracted with the City of Norwalk, Ohio, to fabricate and install for it an ash hopper and an ash gate in the light and water plant of that city. It completed the installation in February, 1940, and the gate was in continuous use from that time until May 13, 1943, the date of appellant's injury. During this period appellee manufactured and installed about 2000 of these gates in power plants throughout the country. It had a system of checking through its field representatives upon the equipment manufactured by it and no complaint had ever been made to it of any defect in the gate here involved, or of irregularity in its operation.

The gate itself is of metal construction and weighs about 12,000 pounds. It rests and moves upon a frame attached to the bottom of the ash hopper. The gate, resting horizontally, is moved by rollers in grooves attached to the frame. The bottom of the gate is about four feet above the level of the basement floor. A metal car underneath the gate receives the ashes from the hopper when the gate is opened. The gate is opened by a pinion gear and rack. The rack consists of a plate containing a row of gear teeth and attached to the bottom of the gate. The pinion gear is attached to the end of an axle and the teeth thereof mesh with those of the rack. When the teeth are meshed and the pinion gears move, the gate is necessarily moved; and opens or closes with the movement of the pinion. The pinion gear is operated by means of a removable ratchet wrench, with a handle 36 inches long which is fitted to the end of the axle to which the pinion gear is attached.

To open the gate, the operator, standing by its side, pushes the handle downwardly. When the handle is moved in an arc of about 60 degrees, the gate opens 2½ inches. This pumping motion is repeated until the gate sufficiently opens to allow the ashes to fall from the hopper. To prevent the teeth on the rack from becoming unmeshed with the teeth of the pinion gear, and thus allowing the gate to fall, there is a stopping arrangement which consists of metal lugs cast integrally on each side of the frame of the gate and metal lugs projecting at right angles from each side of the frame of the hopper to engage them. In normal operations, when the handle is pushed downwardly, the gate rolls forward horizontally until the lugs meet and stop its movement.

On the occasion of the accident, the gate did not stop, but moved forward until the gears of the rack became unmeshed with the gears of the pinion.

Appellant, a fireman's helper, was an employee of the city and one of his duties was to empty the hopper and this necessitated opening the gate by downward pressure on the handle. He attempted to close it by a reverse motion of the handle. It would not close, because it had moved so far beyond the stop that the teeth of the rack would not engage the teeth of the pinion; whereupon appellant went around to the front of the gate and undertook to force it back into engagement, when it fell upon and injured his left leg and ankle.

It is manifest that the stopping arrangement had not functioned. On the previous day it had failed and appellant had pushed the gate back into place. These were the first failures in the stopping mechanism, although the gate had been in operation continuously, day and night, for more than three years.

An examination disclosed that the lugs on the frame had become bent outwardly until they would not engage the lugs on the gate and stop its forward movement.

The gist of appellant's complaint is, that appellee, the manufacturer, was negligent in furnishing insufficient, inoperative and defective stops.

In Borg-Warner Corporation v. Heine, 6 Cir., 128 F.2d 657, 658, we stated the law to be:

"The general rule is that the manufacturer of an article is not liable to third parties, who have no contractual relations with him, for negligence in the construction of the article. The proposition is elementary and needs no citation of authority to support it. ...