Musgrave v. UNION CARBIDE CORPORATION

Decision Date06 March 1974
Docket Number73-1284.,No. 73-1283,73-1283
Citation493 F.2d 224
PartiesRobert MUSGRAVE, Plaintiff-Appellee, v. UNION CARBIDE CORPORATION, Defendant-Appellant. Robert MUSGRAVE, Plaintiff-Appellant, v. PROCESS ENGINEERING, INC., et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

COPYRIGHT MATERIAL OMITTED

Richard P. Komyatte, Hammond, Ind., William N. Anthony, Chicago, Ill., for Musgrave.

Elmer F. Slovacek, Francis D. Morrissey, Caryl P. Bonotto, Chicago, Ill., for Union Carbide & Process Eng.

Before CASTLE, Senior Circuit Judge, PELL, Circuit Judge, and GRANT, District Judge*.

CASTLE, Senior Circuit Judge.

Defendant Union Carbide Corporation appeals from a jury verdict for plaintiff Robert Musgrave in a negligence action involving personal injuries sustained when the hitch connecting a mobile nitrogen converter trailer to the tractor which Musgrave was driving sheared off, causing the trailer to strike the tractor. On appeal, Union Carbide asserts that Musgrave failed to introduce sufficient evidence to prove that Union Carbide committed the acts alleged in the amended complaint: furnishing Musgrave a trailer to which it had affixed a defective and unsafe hitch assembly, and using the trailer hitch assembly in an unsafe manner. Union Carbide further argues that Musgrave failed to sustain the burden of proof required to show that such acts were the result of negligence or were the proximate cause of Musgrave's injury, and that the court incorrectly instructed the jury on negligence. Union Carbide also contends that the trial court erroneously sustained an objection barring Union Carbide from commenting on matters mentioned by a codefendant during closing argument and failed to direct the jury to render a complete verdict respecting a codefendant. We have considered these issues and we affirm the judgment on the jury verdict.

Musgrave was a truck driver employed by the McKeown Transportation Co., a contract carrier for Union Carbide. On July 3, 1969, Musgrave's dispatcher ordered him to take a mobile nitrogen converter trailer from Union Carbide's East Chicago, Indiana plant to Kankakee, Illinois. Musgrave took the one McKeown tractor equipped with a pintle hook compatible with the hitch assembly on the trailer and drove to the Union Carbide plant, where he positioned the trailer and the tractor and then lowered the lunette eye of the trailer on the tractor's hook. When he observed a proper fit, Musgrave triggered the safety catch locking the mechanism, connected the safety chains between the trailer and the tractor, inspected the rig, and began his journey. While driving on Interstate 57 near Kankakee, he noticed that the trailer was weaving in a pattern about two feet to the left and to the right of the tractor. He attempted to bring the rig to a gradual halt in order to tighten the safety chains. At that point, the trailer broke loose from the tractor, spinning the tractor completely around. The trailer then fell and struck the front end of the tractor. Following the impact, Musgrave noted that while the lunette eye was still locked in the catch of the tractor hook, the stem connecting the eye to the trailer had separated.

At trial, expert testimony established that two sources of metal fatigue resulted in the stem separation. First, the mounting plate on the trailer through which the threaded lunette stem passed was excessively thick, preventing the castle nut on the other side of the plate from being fully tightened on the lunette stem when the stem was inserted through any one of four lunette holes in the mounting plate. (The holes were arranged vertically to permit adjustment of the lunette to fit tractors of varying heights.) Second, since none of the four holes in the mounting plate had been chamfered, when a lunette stem was inserted through a hole in the mounting plate the jagged edge of the hole created a stress concentration point where the eye of the lunette joined the stem (the situs of the stem separation in the accident).

The trailer in question was designed and manufactured for Union Carbide by Process Engineering, Inc., a codefendant in this action. Process Engineering stipulated that it had exercised exclusive control over the design and manufacture of the trailer prior to its sale to Union Carbide. However, it denied that it had manufactured the hitching assembly found on the trailer. Union Carbide offered testimony that it had made no modifications in the hitching assembly, that it had performed no maintenance on the hitch, and that the mechanism was essentially in the same condition when the accident occurred as when the trailer arrived from Process.

Confronted with denials of responsibility from the only two logical sources who could possible explain the attachment of the defective mounting plate to the trailer, Musgrave sued both Process Engineering and Union Carbide and properly presented his alternative theories of liability to the jury, Schmidt v. Archer Iron Works, Inc., 44 Ill.2d 401, 402-403, 256 N.E.2d 6 (1970): Either Process Engineering affixed the mounting plate to the trailer during its manufacture or Union Carbide removed the manufacturer's mounting plate and attached a defective plate. Musgrave necessarily relied substantially on proof by circumstantial evidence, for in cases such as this, the plaintiff rarely has direct proof of what occurred in the manufacturer's or consumer's plants. Cf., Grey v. Hayes-Sammons Chemical Co., 310 F.2d 291, 302 (5th Cir. 1962). Such circumstantial evidence is clearly sufficient, however, to provide the basis for a finding of negligence. As this court stated in Gearhardt v. American Reinforced Paper Co., 244 F.2d 920, 924 (7th Cir. 1957):

Generally speaking, direct and positive testimony to specific acts of negligence is not required to establish it.
Circumstantial evidence is sufficient, either alone or in combination with direct evidence. Circumstantial evidence may contradict and overcome direct and positive testimony. The limitation on its use is that the inference drawn must be reasonable. But there is no requirement that the circumstances, to justify the inferences sought, negative every other positive or possible conclusion. The law is not so exacting that it requires proof of negligence or causation by testimony so clear that it excludes every other speculative theory.

Process Engineering's design engineer testified that the drawing plans for this trailer and other identical trailers specified the utilization of a Holland Hitch Manufacturing Co. lunette as well as a three inch thick mounting plate with chamfered holes in the hitch assembly. He further stated that a Holland Hitch lunette, model number 1263, was used on this particular trailer and that the engineering procedure which called for chamfering the mounting plate holes had been followed in the production of this trailer. Holland Hitch's assistant general manager examined the fractured lunette, and based on the shape of the eye, the absence of a die forging number, and the indications of the manner in which the lunette was cut to size, he stated that the lunette attached to this trailer which sheared off and caused the accident was not manufactured by his company. The clear inference from this testimony was that while the trailer was manufactured by Process Engineering, Process Engineering neither manufactured nor affixed the hitch found on the trailer; therefore, Union Carbide must have attached the hitch assembly to the trailer.

Moreover, evidence of Union Carbide's post-accident behavior tended to corroborate Process Engineering's denial of the manufacture of the defective mounting plate and to suggest that Union Carbide was responsible for the attachment of the faulty plate. At the time of the accident, the trailer had only been pulled a total of 175 miles during eight and one-half months of use. Yet Union Carbide, which had expended $11,240 for the purchase of the trailer only months before the accident, did not notify Process Engineering that the hitch assembly on its relatively new trailer had failed or that such failure had caused damage to Union Carbide's trailer, damage to McKeown's tractor, and personal injuries to Musgrave. Rather, Union Carbide simply welded the same lunette to the mounting plate and continued to use the trailer. It would strain credulity to believe that a knowledgeable and sophisticated corporation such as Union Carbide would magnanimously relieve Process Engineering of the cost of repair resulting from the extremely premature failure of new but obviously defective equipment, if in fact the hitch assembly had been manufactured and installed by Process Engineering. In contrast, Process Engineering (which had previously tested the safety factors incorporated into its design of the mounting plate to eliminate stress and had never received any report from owners of its trailers complaining of faulty hitches) made no modification of the design of the mounting plate or the method of installation of lunettes subsequent to the accident.

Further, circumstantial evidence suggested not only that Union Carbide affixed the hitch assembly to the trailer but also that the hitch assembly which it installed had been previously used. It was undisputed that the trailer was first put in operation at the East Chicago plant and that Union Carbide's contract carrier, McKeown, had only one tractor specially equipped to pull this trailer. It was also undisputed that given the particular height of the tractor, the tractor was properly aligned with the trailer only when the lunette was inserted through the fourth (e. g., the bottom) hole of the mounting plate; any other position would have imposed undue stress on the hitch assembly. Yet, substantial evidence indicated that the lunette had also been inserted in both the top (i. e., first) hole, as well as the third hole. Thus the jury could reasonably infer...

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