391 F.2d 420 (10th Cir. 1968), 9386, Schenfeld v. Norton Co.

Docket Nº:9386.
Citation:391 F.2d 420
Party Name:Joseph SCHENFELD, Appellant, v. NORTON COMPANY, Appellee.
Case Date:March 25, 1968
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 420

391 F.2d 420 (10th Cir. 1968)

Joseph SCHENFELD, Appellant,

v.

NORTON COMPANY, Appellee.

No. 9386.

United States Court of Appeals, Tenth Circuit.

March 25, 1968

Rehearing Denied July 2, 1968.

Philip Hornbein, Jr., Denver, Colo, (Roy O. Goldin, Denver, Colo., was with him on brief), for appellant.

John C. Mott, Denver, Colo. (of Zarlengo, Mott & Carlin, Denver, Colo.), for appellee.

Page 421

Before MURRAH, Chief Judge, and BARROW and DELEHANT, [*] District judges.

MURRAH, Chief Judge.

Appellant Joseph Schenfeld was injured in the course of his employment with Western Foundries, Inc., when a grinding wheel he was using flew into pieces, one or more of which struck him in the face. The wheel was mounted on a power grinder by means of a metal mount. Schenfeld brought suit against appellee Norton Company (the manufacturer and supplier of both the grinding wheel and metal mount), alleging: (1) breach of an implied warranty that the grinding wheel was in all respects fit, proper and safe to be used when mounted in the manner in which it was, and (2) negligence. At the close of the evidence the trial judge sustained Norton's motion to dismiss the implied warranty claim. He found that the metal mount was not sold by Norton to Schenfeld's employer, and concluded that in the absence of a 'sale', there could be no implied warranty. The case was submitted to the jury on the negligence count, the court instructing on both negligence and contributory negligence. Judgment was entered on the jury verdict in favor of Norton. On appeal, Schenfeld contends that the trial judge erred in: (1) instructing the jury on contributory negligence, and (2) dismissing the implied warranty claim.

The record discloses the following pertinent facts. Norton manufactures and markets approximately 250, 000 varieties of grinding wheels. The type being used by Schenfeld at the time of the accident was a so-called 'raised hub' grinding wheel, designed to perform a particular grinding operation. Norton Markets, as a separate item, a fiber mount to be used for mounting raised hub wheels. For some time prior to the accident Western Foundries' Foreman Grieve had purchased hub grinding wheels and fiber mounts from Danielson, Norton's salesman who made monthly visits to the foundry. Grieve became dissatisfied with the fiber mounts because they wore down too quickly and, about a month before Schenfeld's injury, asked Danielson if there was a metal mount that could be used in place of the fiber one. Danielson replied that although Norton did not make a metal mount for sale as a separate item, it did market, as a complete unit, a metal mount and grinding wheel attached together by means of a cement adhesive. This unit was called a 'dis-card mount wheel' or a 'throw-away mount wheel' because the mount was discarded along with the wheel when the wheel was worn out. Danielson said he would get Grieve one or two of these metal dis-card mounts which, after removal from the attached grinding wheels, could be used in place of the fiber mounts. A few days later Danielson brought two of the throw-away mounts to Western Foundries and told Grieve 'to give these a try and see if they would work.' 1

On the morning of the accident, Grieve personally mounted a hub wheel (admittedly manufactured and marketed by Norton) on a portable grinder by means of one of the supplied metal mounts. He subsequently assigned the grinder to Schenfeld to remove rough places from a cast iron irrigation gate. Schenfeld testified that after checking the grinding wheel for chips, he started the grinder and had 'barely touched' the gate with the grinding wheel when the accident occurred.

The trial of the case was essentially a battle of experts. In support of his negligence and breach of warranty counts, Schenfeld presented expert testimony to the effect that there was a mismatch between the metal mount supplied by Danielson and the grinding wheel;

Page 422

that this mis-match created a gap between the mount and the wheel; and that when the two were placed on the grinder and tightened, a stress was created in the grinding wheel, causing it to break and injure Schenfeld. This conclusion as to the cause of the accident was refuted by two expert witnesses called by Norton. Based upon their examination of the wheel gragments, they concluded that the grinding wheel broke as the result of being 'jammed' by the operator, i.e. banged suddenly into the work piece.

At the close of the evidence, the trial judge, over objection by Schenfeld's counsel, instructed the jury to return a verdict for Norton if the jury found that Schenfeld was guilty of contributory negligence. On appeal, Schenfeld argues that the expert testimony to the effect that the accident was caused by jamming on the part of Schenfeld was merely 'surmise, speculation and conjecture', and did not form a sufficient basis upon which to predicate an instruction on contributory negligence. On the contrary, we think the instruction was proper.

It is true of course that contributory negligence, like primary negligence, must be based upon something more than speculation or surmise, but negligence, either primary or contributory, may be established by reasonable inferences drawn from...

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