Central Steel Tube Co. v. Herzog

• Citation: 203 F.2d 544
• Decision Date: 18 May 1953
• Docket Number: No. 14601.,14601.
• Parties: CENTRAL STEEL TUBE CO. v. HERZOG.
• Court: U.S. Court of Appeals — Eighth Circuit

203 F.2d 544 (1953)

CENTRAL STEEL TUBE CO. v. HERZOG.

No. 14601.

United States Court of Appeals Eighth Circuit.

April 17, 1953.

Rehearing Denied May 18, 1953.

P. B. Holleran and Prentice W. Shaw, Clinton, Iowa (Holleran & Holleran, Clinton, Iowa, and F. J. MacLaughlin, Davenport, Iowa, on the brief), for appellant.

Robert J. Sheran, Mankato, Minn. (Lane & Waterman, Davenport, Iowa, Arnold W. Beneke, Glencoe, Minn., and Gallagher, Farrish & Sheran, Mankato, Minn., on the brief), for appellee.

Before GARDNER, Chief Judge, and THOMAS and COLLET, Circuit Judges.

GARDNER, Chief Judge.

This appeal is from a judgment in favor of appellee in an action brought to recover damages for personal injuries. The injuries are alleged to have been the result of negligence of appellant in packing for shipment a grain swather manufactured by appellant and delivered by it to the Farmers Supply Company at Glencoe, Minnesota. The parties will be referred to as they were designated in the trial court.

It was the claim of plaintiff that the machine in question was manufactured by defendant and was assembled for shipment and delivery in such a manner that certain levers thereon, to which were attached very strong springs, were wired down so that the said springs were at a very high tension and that the said levers were thus wired and held in place by such wiring, and that the defendant knew that persons engaged in assembling the said machine for the purpose of use or demonstration would have to free the said levers by cutting the wires retaining them and that the springs were in effect a trap in the nature of a spring gun which would probably result in injury to the person cutting the wire in the process of assembling the said machine; that plaintiff as an employee of said Farmers Supply Company was directed by his employer to prepare the swather in question for delivery to the ultimate consumer and to assemble it and that in the process of so doing he came into a position near the said levers for the purpose of cutting the wire and that as he did so the tension on such springs was released causing one of said levers to strike him on the head resulting in serious personal injuries.

The defendant admitted the jurisdictional allegations of the complaint, denied negligence and pleaded as an affirmative defense contributory negligence on behalf of the plaintiff.

The accident which resulted in this injury occurred in Minnesota on June 3, 1949. The defendant is a corporation with its principal place of business in the State of Iowa and the action was brought in the State of Iowa. At the time of receiving his injuries plaintiff was employed by the Farmers Supply Company. A swather is used in connection with cutting grain. It is attached to a tractor by which it is propelled. It has two levers, each of which is about four feet in length, to which is attached a coil spring fastening it to a horizontal bar. These levers are used in connection with raising and lowering the cutting part of the machine. As the basis of plaintiff's claim is not any defect in the manufacture of the machine we do not deem it important to give a detailed description of the mechanism. The claim is that the negligence of the defendant consisted of the manner in which the machine was prepared for shipment. When it was delivered wire was wrapped around the front of the hitch and over the top of the levers which had been placed in a downward position. There were no cards, signs, caution signs, nor instructions attached to the machine. The levers were in a drawndown position so as to come into contact with the bars at the bottom of the machine. Plaintiff cut this wire, releasing the levers, one of which flew up to a perpendicular position striking him with great force and inflicting injuries upon him. The evidence will be further developed during the course of this opinion.

The case was tried to a jury and at the close of all the testimony defendant moved for a directed verdict which was denied and the case was submitted to the jury on instructions to which defendant saved certain exceptions. The jury returned a verdict in favor of plaintiff on which in due time judgment was entered from which defendant prosecutes this appeal. In seeking reversal it contends in substance: (1) the court erred in overruling defendant's motion for a directed verdict; (2) the court erred in giving instruction No. 9, advising the jury that the burden of proving contributory negligence rested on the defendant.

In our consideration of the question of the alleged error of the court in denying defendant's motion for a directed verdict we are met with the contention of plaintiff that the defendant is bound by certain instructions of the court to which it took no exceptions on the theory that unexcepted to instructions become the law of the case. When the motion for directed verdict was interposed, no instructions had, of course, been given to the jury and we are of the view that defendant was entitled to have the question of the sufficiency of the evidence to go to the jury determined by the applicable law without reference to the instructions subsequently given by the court even though such instructions may not have been excepted to by defendant. If under the applicable law the court was in error in denying defendant's motion for a directed verdict it was an error at law occurring during the trial of the action and reviewable as such. Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879; Spring Garden Ins. Co. of Philadelphia v. Wood, 4 Cir., 194 F. 669; Schmidt v. Carpenter, 27 S.D. 412, 131 N. W. 723; A. T. & S. F. Ry. Co. v. Meyers, 7 Cir., 76 F. 443; Patry v. Chicago & W. I. R. Co., 265 Ill. 310, 106 N.E. 843; White v. Rintoul, 108 N.Y. 222, 15 N.E. 318; Johnson v. City of Dennison, 186 Iowa 949, 173 N.W. 46; Ballinger v. Democrat Co., 207 Iowa 576, 223 N.W. 375. Under the Constitution, federal courts may not review in law actions the facts as determined by the lower court but may only consider issues of law. The ruling on the motion for a directed verdict presents therefore an alleged error at law occurring during the trial. There would seem to be no more reason for applying the law as declared in the instructions in considering the ruling on motion for a directed verdict than in considering the ruling of the court on the admissibility of evidence. In each case the error, if any, is an error at law occurring during the trial.

In support of its contention that the court should have directed a verdict in its favor, defendant invokes the general rule that a contractor, manufacturer, or vendor is not liable to third parties who have no contractual relations with the manufacturer for negligence in the manufacture or sale of the product. The rule, however, has exceptions which are as well established and recognized as the rule itself. One of these is that an act of negligence of a manufacturer or vendor of an article, which is imminently dangerous to the life or health of mankind, which is committed in the preparation or sale of the article is actionable by third parties who suffer from such negligence. In this connection it should be observed that the complaint here is not that the manufacturer was negligent in the construction of the machine, but rather that in the matter of packing the machine, it was negligently converted into an article imminently dangerous to life and health. In the Restatement of the law of Torts, § 398, Chapter 14, page 1080, the following paragraph illustrating the text appears:

"The A electrical company sells and ships a machine to the B company, so packed as to be dangerous to those that unpack it. In consequence C, an employee of the B company, is hurt while unpacking the machine. The A company is liable to C even though his employer, the B company, was also negligent toward him in failing to inspect the machine and container before turning it over to C for unpacking."

See, also: Rosebrock v. General Electric Co., 236 N.Y. 227, 140 N.E. 571; Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N.W. 1103, 15 L.R.A. 818.

In considering the question of the sufficiency of the evidence to entitle the plaintiff to have it submitted to the...