Blohm v. Cardwell Manufacturing Co.

• Decision Date: 24 August 1967
• Docket Number: No. 8373,8628.,8373
• Citation: 380 F.2d 341
• Parties: Katherine BLOHM, Administratrix of the Estate of Robert Frederick Blohm, Deceased, Appellant, v. CARDWELL MANUFACTURING CO., Inc. a Kansas corporation, Appellee. CARDWELL MANUFACTURING CO., Inc., a Kansas corporation, Appellant, v. Katherine BLOHM, Administratrix of the Estate of Robert Frederick Blohm, Deceased, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

380 F.2d 341 (1967)

Katherine BLOHM, Administratrix of the Estate of Robert Frederick Blohm, Deceased, Appellant, v. CARDWELL MANUFACTURING CO., Inc. a Kansas corporation, Appellee.

CARDWELL MANUFACTURING CO., Inc., a Kansas corporation, Appellant, v. Katherine BLOHM, Administratrix of the Estate of Robert Frederick Blohm, Deceased, Appellee.

Nos. 8373, 8628.

United States Court of Appeals Tenth Circuit.

July 3, 1967.

Rehearing Denied August 24, 1967.

Ernest Wilkerson and Jerry A. Yaap, Casper, Wyo., for Katherine Blohm, etc.

Byron Hirst, Cheyenne, Wyo. (James L. Applegate and Richard V. Thomas, Cheyenne, Wyo., on brief), for Cardwell Mfg. Co., Inc.

Before MURRAH, Chief Judge, LEWIS, Circuit Judge, and CHRISTENSEN, District Judge.

MURRAH, Chief Judge.

This is an appeal from a judgment on a Wyoming jury verdict denying recovery in a wrongful death action based upon the alleged negligent design and manufacture of an oil well drilling rig. The only question is whether the trial court erroneously excluded evidence of competitive and comparative design and manufacture tendered to prove the critical issue of negligence.

The operative facts are that the deceased, Robert Blohm, was a derrick man on a jackknife-collapsible "Travelrig" manufactured and sold by appellee-Cardwell Manufacturing Company, Inc., to Blohm's employer, Capshaw Well Servicing Company. This rig is a mobile unit designed to be made operational by positioning the truck carrier at the well site, jackknifing the entire derrick into a vertical position, then hydraulically telescoping the upper portion into place from its nest inside the base. The extended derrick is locked into place and stabilized by activating locking pins which are automatically inserted in matching holes in the top and bottom sections of the derrick. "Spring loaded safety locks" are inserted into matching grooves in the locking pins, thus securing them in their locked position.

On the date of the accident the Capshaw crew proceeded to a designated well site in Wyoming and commenced to "rig up". The rig was positioned, the derrick raised, and operations begun. While a tension of some 26,000 lbs. was being exerted against the crown of the derrick, the top section collapsed into the bottom section, apparently because the locking pins had failed to insert into their holes due to a slight twist in the rig. Blohm was working somewhere in the derrick and was fatally injured.

On trial appellant-administratrix sought to prove that Blohm's death was the result of the negligent design of the Cardwell rig in that it failed to allow sufficient tolerance for the insertion of the locking pins and failed to install adequate and proper safety devices to warn in the event the locking pins failed to seat themselves and thus secure the upper portion of the derrick in its extended position.

To prove her case of negligent design and manufacture, the widow-administratrix offered the testimony of two witnesses employed by manufacturers of rigs similar to the Travelrig to show "competitive design" used by their respective companies to hold the top portion of a derrick in place during operation. She also offered comparative design evidence by the testimony of an expert witness with an accompanying demonstrational model "* * * to show what might have been done safely and cheaply to have made this a safer rig." Cardwell objected to the admission of the proffered evidence, as indeed it does here, for the reason that "no proper foundation has been laid" and further that the decision of this court in Marker v. Universal Oil Products Co., 250 F.2d 603, clearly makes such evidence inadmissible. The jury was excused and in the ensuing colloquy counsel for the administratrix stated his position in no uncertain terms to the effect that this case is clearly distinguishable from Marker; that in admitting and submitting the proffered evidence to the jury it should be told that evidence of competitive and comparative design was not admitted "* * * as being necessarily evidence of negligence", but where as in this case, "* * * the whole essence of which is a design deficiency", the evidence is received and should be considered "Not necessarily as the ultimate, not necessarily a perfect, foolproof insurance policy, but that this simple, feasible thing could have been done which would have lessened the likelihood of this man's death. I don't know of any other way to approach a case of this kind except to be permitted to show to the court and jury what feasible, realistic, economical methods could have been accomplished which would have made this rig safer." The trial judge excluded the testimony of the two lay witnesses as to competitive design, and consistent with this ruling restricted the expert witness "to purely opinion testimony" concerning defective design of the Travelrig. He thus excluded any expert testimony of comparative design as demonstrated by the model as to how the Travelrig could have been more safely designed and manufactured. In so ruling, the trial court relied squarely on the Marker case. As we shall see we think the court's reliance on Marker was misplaced, and that the excluded evidence was admissible for the very purposes stated by administratrix's counsel in his argument to the trial court in support of admissibility.

In Brigham Young University v. Lillywhite, 10 Cir., 118 F.2d 836, we stated the rule to be that evidence of this nature was inadmissible to establish a legal standard of care; for the law fixes the standard of care as ordinary care. At the same time, we sought to make it clear that such evidence is admissible to be considered by the jury in determining the ultimate issue of negligence based on the legal standard of ordinary care. See also Denning Warehouse Company v. Widener, 10 Cir., 172 F.2d 910, 913, 13 A.L.R.2d 669. As Mr. Justice Holmes put it, "What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence whether it is usually complied with or not." See Texas & Pacific Railway Company v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 47 L.Ed. 905, cited and quoted in Atchison, Topeka and Santa Fe Railway Company v. Parr, 96 Ariz. 13, 391 P.2d 575, 578. In a slightly different context the Eighth Circuit has recently stated that what is customary is "* * relevant and admissible in evidence of negligence but not conclusive * *". Colorado Milling & Elevator Company v. Terminal Railroad Ass'n, 350 F.2d 273, 278. The subject is exhaustively treated in II Wigmore, 3rd ed., Sec. 461. This reasoning is equally applicable to evidence of comparative design, i. e., evidence of what might be economically and feasibly done as tending to show what ought to be done in the circumstances. Stone & Webster Engineering Corporation v. Melovich, 9 Cir., 202 F. 438; Daniels v. County of Allegheny, D.C., 145 F.Supp. 358.

In Lillywhite, we committed to the trial court a practical discretion in ruling on the admissibility of evidence of this kind. The trial judge must be free to determine whether the proffered evidence would be such as to aid the jury in deciding the ultimate issue of negligence, or whether its cogency in that respect is outweighed by the likelihood that it would tend to confuse rather than...