190 F.2d 825 (3rd Cir. 1951), 10400, Trowbridge v. Abrasive Co. of Philadelphia

Docket Nº:10400.
Citation:190 F.2d 825
Case Date:July 25, 1951
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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190 F.2d 825 (3rd Cir. 1951)




No. 10400.

United States Court of Appeals, Third Circuit.

July 25, 1951

Argued April 19, 1951.

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Walter B. Gibbons, Philadelphia, Pa. (Philip Price, Philadelphia, Pa., on the brief), T. Ewing Montgomery, Philadelphia, Pa., amicus curiae, for appellants.

Abraham E. Freedman, Philadelphia, Pa. (Freedman, Landy, & Lorry, Philadelphia, Pa., on the brief), for appellee.

Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.

STALEY, Circuit Judge.

On April 27, 1945, plaintiff, a grinder and chipper then employed by the Northwest Foundry and Furnace Company in Portland, Oregon, was seriously injured because of the disintegration of a grinding wheel which he was using. That is the basis of the action brought below by plaintiff against the Simonds Abrasive Company, defendant, manufacturer of the wheel. 1 The jury returned a verdict of

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$126, 182.24, 2 and defendant has appealed to this court.

The following are the facts, viewed in a light most favorable to plaintiff. Plaintiff's duties on the day of the accident consisted of grinding off the rough edges from castings by the use of an abrasive wheel attached to a portable pneumatic grinder. This operation is known in the industry as a 'snagging operation.' The record discloses that plaintiff reported for work at Northwest Foundry at midafternoon on the day of the accident, relieving one Williams, who had been performing identical duties on the prior shift. There is evidence that Williams had attached a new abrasive wheel to the grinder that morning. Plaintiff testified that one-half inch thereof had been ground off during the day. There is an abundance of evidence that plaintiff is an experienced grinder, a conscientious workman, and that he was highly regarded by his fellow employees and by the plant superintendent. There is also evidence that Williams was an experienced grinder. Plaintiff's testimony is that before commencing his snagging operation, he had inspected and tested the grinder and wheel in the customary manner. About a half minute after he started to grind the casting, the abrasive wheel suddenly shattered into many pieces, some of which tore through both of plaintiff's legs three or four inches above the ankles.

Plaintiff was unable to prove, by direct evidence, that any defect existed in this particular wheel. Microscopic tests conducted at Massachusetts Institute of Technology were inconclusive. Plaintiff, however, charges defendant with negligence in its method of manufacture, and in its failure to test its products properly. The nature of the evidence with reference thereto will be discussed later in this opinion.

In an attempt to eliminate the probability of intervening causes, and thus bolster the inference that it was defendant's negligence which caused the disintegration of the wheel, plaintiff introduced evidence as to the life history of this wheel. Cf. Diesbourg v. Hazel-Atlas Glass Co., 3 Cir., 1949, 176 F.2d 410. The record shows that on January 19, 1945, a Portland jobber and distributor received an order from plaintiff's employer for 36 abrasive wheels. The jobber apparently had no wheels in stock and ordered them from defendant-manufacturer. The sheets were shipped to the jobber who, in turn delivered them to plaintiff's employer on March 1, 1945. The testimony of the general manager of the Portland jobber, taken by deposition, is that the wheels were probably held in its warehouse no longer than 10 to 15 days. The testimony of the superintendent of Northwest Foundry, plaintiff's employer, is that the wheels were kept in a safe place until they were used. The plant maintenance man at Northwest Foundry stated that the grinders were in good condition and were tested properly. There was evidence from which the jury could find that the grinder, at the time of the accident, was operated at a speed less than the maximum recommended by defendant-manufacturer.

Defendant's principal argument on appeal is that there was no evidence of negligence to support a verdict for plaintiff. Its position is that the lower court erred in not granting a judgment n.o.v. or, in the alternative, in not granting a new trial.

Since jurisdiction is based on diversity of citizenship, 3 a preliminary word on the applicable law is in order. We look first to the conflict of law rules of...

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