MC Carlisle & Co. v. Cross, 6904.

• Decision Date: 05 December 1967
• Docket Number: No. 6904.,6904.
• Citation: 386 F.2d 672
• Parties: M. C. CARLISLE & CO., Inc., Defendant, Appellant, v. Robert W. CROSS, Plaintiff, Appellee.
• Court: U.S. Court of Appeals — First Circuit

386 F.2d 672 (1967)

M. C. CARLISLE & CO., Inc., Defendant, Appellant, v. Robert W. CROSS, Plaintiff, Appellee.

No. 6904.

United States Court of Appeals First Circuit.

December 5, 1967.

John M. Hall, Boston, Mass., with whom Weld S. Henshaw, Thomas E. Cargill, Jr., and Choate, Hall & Stewart, Boston, Mass., were on brief for appellant.

Stephen A. Hopkins, Boston, Mass., with whom Timothy H. Donohue and Sherburne, Powers & Needham, Boston, Mass., were on brief, for appellee.

Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

This diversity action arose out of an explosion that occurred in June 1962 in the sander dust disposal system at the Plywood Products woodworking plant in North Stratford, New Hampshire. As a result of the explosion plaintiff, a Plywood employee who at the time was working on the system, sustained severe burns. He brought this suit against M. C. Carlisle & Co., Inc., a Boston sheet metal work firm, alleging that his injuries were caused by Carlisle's negligence in the design, manufacture and installation of the system.

This is the second trial and the second appeal in this case. The first trial ended in a directed verdict for the defendant but on appeal we reversed and remanded the case for a new trial. Cross v. M. C. Carlisle & Co., 368 F.2d 947 (1st Cir. 1966). The new trial resulted in a substantial verdict for plaintiff. At this trial defendant twice moved for a directed verdict but the court denied these motions and submitted the case to the jury.¹

Defendant's principal contention on appeal is that the trial court erred in not directing a verdict in its favor. Much of the evidence with reference to the physical setup and operation of the dust disposal system in question is substantially the same as that produced at the first trial. This evidence is set forth in detail in our earlier opinion and although essential to a proper understanding of this case will not be repeated here.

In view of our prior holding² the evidence of liability introduced at the second trial was directed entirely to the issue of whether Carlisle was negligent in designing, manufacturing and installing the fire damper and whether this negligence was the proximate cause of plaintiff's injuries. This was a secondary issue at the first trial, the emphasis there being primarily on the alleged defects in the tail pipe.

The fire damper in question is a piece of steel plate one-eighth of an inch thick and about thirty-six inches long installed on an angle and swiveled on a rod that runs across the top and protrudes through the sides of the rectangular shaped duct in which it is enclosed.³ It is located at or near the point where the feeding duct enters the separator. When the blower is on, the damper opens to a horizontal position but when it is off the damper is supposed to close by its own weight and seal off the feeding duct. The only way one can tell whether the damper is open or shut is from the position of the handle on the top of the rectangular duct. It is undisputed that the blower had been off for three days when this explosion occurred. The housing on the blower was partly dismantled and plaintiff and two other Plywood employees were on the platform in the boiler room working on it. There was a boom and suddenly flames flashed through the eye of the blower engulfing the plaintiff.

He contends that the initial combustion took place in the separator,⁴ that the flames passed around the edges of the fire damper igniting other wood dust and air in the duct leading to the blower and as a result flames emerged from the eye of the blower where plaintiff was working. The specific negligence alleged is that the fire damper in question was deficient as a safety device in that it did not contain the flames in the separator and prevent them from travelling back through the system. In support of this theory of recovery plaintiff produced the same witnesses he relied upon at the first trial. Their testimony, however, was considerably more extensive on the fire damper issue.

As we stated at p. 953 of our opinion on the first appeal in discussing the matter of sufficiency of evidence on a motion for a directed verdict,

"In this circuit a scintilla of evidence is not enough. Magnat Corporation v. B & B Electroplating Co., 358 F.2d 794 (1st Cir. 1966). Conclusions of fact must be supported by substantial evidence. This means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. United States v. Krumsiek, 111 F.2d 74, 78 (1st Cir. 1940). In Rainey v. Gay\'s Express, Inc., 275 F.2d 450, 451 (1st Cir. 1960), we quoted with approval the principle to be applied by this court in reviewing the record on the question of the sufficiency of evidence on a motion for a directed verdict. This principle was stated as follows:

"`* * * In determining whether or not the evidence in a given case is sufficient to take the case to the jury over a motion for directed verdict, the evidence must be viewed in the light most favorable to the plaintiff, giving the plaintiff the benefit of every inference favorable to him which may be fairly drawn. It is not for the court to weigh the conflicting evidence or to judge the credibility of witnesses. Whenever the evidence is such that fair-minded men may draw different inferences therefrom, and reasonably disagree as to what the verdict should be, the matter is one for the jury. * * *\'"

Reviewing the evidence in the light of these principles, we note that first of all there is ample evidence that the explosion which initiated the train of events leading to plaintiff's injuries occurred in the separator. Also, that Plywood is chargeable with sloppy housekeeping in allowing numerous small fires to burn almost constantly on the boiler room floor in the vicinity of the fire holes. There is evidence, however, that this condition which existed as late as June 1962 must have been known to Carlisle. It was further established that this explosion was by no means the first of its kind in this system. Only three months earlier there was another one in which this same damper and separator were badly damaged.⁵ Indeed, several other less violent explosions occurred in this system in the seven years since 1955 when Carlisle installed it. During this period Carlisle was the only firm that serviced and repaired the system. There is evidence that Kamilewicz, a long time Carlisle employee who helped to install it, was at the Plywood plant two or three times a year since 1955, yet at no time up to March 1962 did he inspect the damper or separator. Nor did Lavin, the president of Carlisle, ever inspect the damper or separator subsequent to their installation.

Kamilewicz's testimony, as well as that of Lavin, is of particular significance on the fire damper issue. Both stated that Carlisle designed, manufactured and installed this...