McKay v. Upson-Walton Company

• Decision Date: 15 May 1963
• Docket Number: No. 13886.,13886.
• Citation: 317 F.2d 826
• Parties: Margaret Rita McKAY, administrator of the Estate of Willis McKay, Deceased, etc., Plaintiff-Appellant, v. UPSON-WALTON COMPANY, an Ohio corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

317 F.2d 826 (1963)

Margaret Rita McKAY, administrator of the Estate of Willis McKay, Deceased, etc., Plaintiff-Appellant, v. UPSON-WALTON COMPANY, an Ohio corporation, Defendant-Appellee.

No. 13886.

United States Court of Appeals Seventh Circuit.

May 15, 1963.

Maurice James Moriarty, Chicago, Ill., for appellant.

John C. McKenzie, Francis D. Morrissey, Baker, McKenzie & Hightower, Chicago, Ill., for defendant-appellee, Michel A. Coccia, Philip J. McGuire, Chicago, Ill., of counsel.

Before HASTINGS, Chief Judge, and CASTLE and SWYGERT, Circuit Judges.

CASTLE, Circuit Judge.

Margaret Rita McKay, administrator of the Estate of Willis McKay, Deceased, plaintiff-appellant, brought this diversity action in the District Court against Upson-Walton Company, defendant-appellee, to recover damages for fatal injuries sustained by plaintiff's intestate. Liability of the defendant was predicated upon allegations of its negligence in the design and manufacture of a tackle block and hook.

On July 3, 1958, a crew from Phillips Getschow Co., the decedent's employer, was using an 8 inch double sheave block and hook, manufactured by the defendant and rated in the catalogue defendant furnished its customers as having a working load capacity of 2½ tons, to lift a length of steel pipe weighing approximately 9,100 pounds. The decedent, a steamfitter, was not involved in the hoisting operation nor in the earlier setting up of the rigging being used. He was performing other work in the vicinity of the operation. The hook straightened out and the pipe fell. It glanced off an already installed pipe. The decedent was struck and sustained injuries from which he died. The block and hook, a type listed in defendant's catalogue as its No. B-292, had come into the hands of decedent's employer through the Brock Tool and Supply Co., of Chicago, Illinois, to which defendant had sold such a unit. The working load capacity was not marked on the device itself but the catalogue number B-292 appeared thereon.

The cause was tried to a jury. At the close of the evidence subparagraphs of the complaint containing allegations of negligence in design, failure to incorporate an adequate safety factor, failure to test adequately, and negligence in manufacturing a block whose capacity was exceeded by that of the rope used in it, were stricken on defendant's motion. We perceive no error in such ruling. There was nothing in the evidence adduced to support such allegations.

The jury failed to agree upon a verdict. The District Court, acting pursuant to the provisions of Rule 50(b), Federal Rules of Civil Procedure (28 U.S. C.A.), granted defendant's motion for judgment. The plaintiff appealed.

The primary question to be determined on this appeal is whether the facts, as shown by the record, required submission of the case to a jury. In making such determination we must look to all the evidence in the record, together with all reasonable inferences to be drawn therefrom. If such evidence and inferences, when viewed in the light most favorable to the plaintiff, are such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions, the case must go to a jury. Pinkowski v. Sherman Hotel, 7 Cir., 313 F.2d 190, 192.

On the record before us we need but consider the issue as to whether under the facts and circumstances involved the failure of the defendant to visibly mark or label the device with notice of its 2½ ton working load capacity constituted conduct from which the jury could find negligence as would support a verdict for the plaintiff.

From the record it...