Alley v. Praschak Mach. Co.

Decision Date24 January 1979
Docket NumberNo. 50807,50807
Citation366 So.2d 661
PartiesRichard ALLEY v. PRASCHAK MACHINE COMPANY and Stanbro Construction Corporation.
CourtMississippi Supreme Court

Boyce Holleman, Ben F. Galloway, III, Gulfport, for appellant.

White & Morse, Stanford E. Morse, Jr., Bryant & Stennis, L. Kenneth Krogstad, Sue Esther Dulin, Gulfport, for appellee.

Before SMITH, LEE and COFER, JJ.

LEE, Justice, for the Court:

Richard Alley instituted suit in the Circuit Court of Harrison County, Honorable Floyd J. Logan, presiding, against Praschak Machine Company and Stanbro Construction Corporation, for personal injuries sustained. The jury returned a verdict in favor of Praschak and Stanbro, and Alley appeals to this court assigning eleven (11) errors in the trial below. We affirm.

I.-II.

The verdict of the jury as to defendant Praschak Machine Company and defendant Stanbro Construction Corporation was against the overwhelming weight of the evidence and could only be the result of bias, passion and prejudice.

This is a products liability case (negligent failure to turn off electric power also was alleged against Stanbro). On June 8, 1973, appellant, while employed by Chattanooga Glass Company, Gulfport, Mississippi, and while working on a machine built by Praschak, suffered the amputation of his left arm. The machine (a skip hoist) was being installed in the Chattanooga plant by Stanbro. It consisted of a large bucket or skip loader filled with raw materials such as sand, soda, ash, etc., from which glass was manufactured. The bucket was pulled a distance of twelve (12) to fifteen (15) feet up the legs of the machine with steel cables powered by a shaft connected to a chain and sprocket drive mechanism. The materials were dumped into a hopper and were conveyed to the manufacturing process. The main switch for the machine was at floor level, but the chain and sprocket were in close proximity to a rotary limit switch approximately fifteen(15) feet above the floor, which controlled the bucket's extent of travel up and down the rail as the cable wound and unwound around a drum. Appellant had climbed up to adjust the switch, and, during the adjustment process, stuck his left arm across the chain for the purpose of holding to a part of the machine, the adjustment activated the chain and sprocket which caught his arm sleeve, pulled his arm into the machine and amputated it. Appellant fell to the floor of the plant and sustained other injuries.

Appellant contends that the machine was defective because there were no guards over the chain and sprocket, no handholds or rails which appellant could hold to, and no ladder could be placed around the machine so that appellant could climb up to the place of work. He further claims that Stanbro was liable in placing the defective machine into the stream of commerce and in negligently energizing the machine at the time appellant put his arm next to the chain.

Praschak contends that the machine was not defective or dangerous when properly used; that it had no knowledge of where, or under what conditions, the machine would be installed; that the machine was elevated twelve (12) to fifteen (15) feet which insulated it from general workmen; that safety guards would be of no benefit since a maintenance worker was required to remove the guards in order to work on the chain, sprocket and switch; and that there were handles or parts of the machine which the appellant could hold to while making the adjustment, rather than place his arm next to the chain in a dangerous situation.

Stanbro contends that its sole responsibility was to assemble the machine, which it purchased from Praschak at the request of Chattanooga Glass Company; that it was not in the business of purchasing and selling such machines but only in assembling them; that it did not wire, energize or maintain the machine; and that such was the responsibility of Chattanooga Glass Company.

The proof introduced by appellant sustained his theory of the case, and the proof of Praschak and Stanbro sustained their respective theories of the case (expert witnesses testified for the parties). The verdict of the jury was supported by the evidence and was not contrary to the overwhelming weight of the evidence.

III.

The granting of Instruction D-6-14 was improper on the question of assumption of risk and amounted to a peremptory instruction.

Appellant contends that the above instruction did not follow the evidence and that it amounted to a peremptory instruction against him. Three (3) essentials must appear in the doctrine of assumption of risk. They are stated in Elias v. New Laurel Radio Station, Inc., 245 Miss. 170, 146 So.2d 558 (1962), as follows:

"The elements which must be found in order to constitute a defense of assumption of risk are generally stated in some such terms as the following: (1) Knowledge on the part of the injured party of a condition inconsistent with his safety; (2) appreciation by the injured party of the danger of the condition; and (3) a deliberate and voluntary choice on the part of the injured party to expose his person to that danger in such a manner as to register assent on the continuance of the dangerous condition." 245 Miss. at 179, 146 So.2d at 561-562.

Also see Yarbro v. Phipps, 285 So.2d 788 (Miss.1973).

In Braswell v. Economy Supply Company, 281 So.2d 669 (Miss.1973), the Court discussed knowledge and appreciation of assumption of risk, and, citing 57 Am.Jur.2d Negligence § 282 (1971), said:

"Where the facts are such that the plaintiff must have had knowledge of the hazard, the situation is equivalent to actual knowledge and there may be assumption of the risk. In some cases the circumstances may show as a matter of law that the risk was understood and appreciated, and often they may present in that particular a question of fact for the jury. Also, the plaintiff may not close his eyes to obvious dangers, and cannot recover where he was in possession of fact from which he would be legally charged with appreciation of the danger." 281 So.2d at 674-675.

Appellant, on cross-examination, testified:

"Q. All right, sir. Now, Mr. Alley, at the time that you were doing these contortions up there, you knew your arm was exposed to that chain and sprocket, didn't you?

A. If the power was on, yes sir it was exposed to it, yes, sir.

Q. You knew that that constituted an open and obvious hazard to your arm if it suddenly started, didn't you?

A. Yes, sir.

Q. So when you were there hanging on to that beam and adjusting these two screws, you knew that if the power was on and you adjusted the one that tripped the upper rotary limit switch that would start the bucket down, didn't you?

A. Yes sir, I did.

Q. And the only reason you say now that you did was that you thought the power was off.

A. Yes, sir.

Q. But you didn't have any acknowledgement from anyone that it was off, did you?

A. I can't say, sir."

Sampson Caldwell, a fellow employee of appellant (employees of Chattanooga) testified that he was operating the main switch; that he moved the bucket at the request of appellant; that he asked Alley "Do you want me to cut the power off?"; and that appellant replied, "No, just leave it alone...

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