Colter v. Barber-Greene Co.

• Decision Date: 20 July 1988
• Docket Number: BARBER-GREENE
• Citation: 403 Mass. 50,525 N.E.2d 1305
• Parties: , 8 UCC Rep.Serv.2d 375, Prod.Liab.Rep. (CCH) P 11,905
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1305

525 N.E.2d 1305

403 Mass. 50, 8 UCC Rep.Serv.2d 375,

Prod.Liab.Rep. (CCH) P 11,905

David E. COLTER v. BARBER-GREENE COMPANY et al. ¹

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 7, 1987.

Decided July 20, 1988.

Richard L. Neumeier (Andre A. Sansoucy and John W. Brister, Boston, with him), for Barber-Greene Co.

Edward Barrett (Jacqueline Sullivan, Boston, with him), for New England Road Machinery Co.

Neil Sugarman, Boston, for plaintiff.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

ABRAMS, Justice.

On December 5, 1978, David E. Colter suffered severe arm injuries while greasing the gears of a twin screw sand classifier owned and operated by Colter's employer, Marshfield Sand & Gravel Company (Marshfield). ² The machine was manufactured by a division of Barber-Greene Company (Barber-Greene) which sold it to Worcester Sand & Gravel Company (Worcester). Worcester traded the machine to New England Road Machinery Company (New England), which later sold it to Marshfield. Colter sued Barber-Greene, Worcester, and New England asserting causes of action for negligence, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular use. ³ The jury found Barber-Greene to have been 36% negligent, found New England to have been 15% negligent, found Worcester not to have been negligent, ⁴ and found Colter to have been 49% contributorily negligent. On the warranty count, the jury found that Barber-Greene and New England each had breached its implied warranty of merchantability and had proximately caused Colter's injuries. However, the jury also found that Colter's recovery was barred because he had actual knowledge of the machine's defective condition, but nonetheless proceeded unreasonably to use the machine.

Barber-Greene and New England moved for judgment notwithstanding the verdict or for a new trial, arguing that the finding on the warranty count was inconsistent with and negated the finding that Barber-Greene's and New England's negligence proximately caused Colter's injuries. ⁵ The trial judge ruled that New England and Barber-Greene were entitled to judgment in their favor. Colter subsequently filed a motion for relief from judgment on the basis of Richard v. American Mfg. Co., 21 Mass.App.Ct. 967, 489 N.E.2d 214 (1986). ⁶ The judge allowed the motion and entered judgment for Colter. New England and Barber-Greene appealed. This court granted Barber-Greene's application for direct appellate review. We conclude that there is sufficient evidence on the issue whether the negligent design of the sand classifier proximately caused Colter's injuries to submit that claim to the jurors. We agree with Barber-Greene that the evidence on negligent failure to warn is insufficient. Because the jurors were not asked to apportion Colter's negligence between the two theories of negligence, there must be a new trial on negligent design.

At the time of his accident, Colter was employed as a manager at Marshfield's quarry in Weymouth. Marshfield operated quarrying equipment at this location including the twin screw sand classifier involved in Colter's accident. The twin screw classifier consisted of a rectangular hopper containing two screw augers. The screws were driven by a set of bevel gears which ran at a speed of approximately twenty to thirty revolutions per minute. The gears, which were powered by an electric motor, were mounted on a steel frame approximately twenty feet above ground. A conveyor belt fed wet sand into the hopper. The screws carried the sand upward to another conveyor belt. The action of the screws removed the water from the sand; the water poured out the low end of the machine.

Barber-Greene's specifications called for a guard to cover the bevel gears, and they did not sell the machine without one. When Worcester purchased the machine involved in Colter's accident in 1952, the purchase included a bevel gear guard. By the time New England took the twin screw sand classifier from Worcester in trade, there was no guard on the machine and the owner's manual which showed the guard in place was missing as well. New England sold the machine to Marshfield in 1969 without the guard or the owner's manual. New England did not inform Marshfield that the machine's bevel gears should be covered. Although Barber-Greene manufactured replacement guards, Marshfield never obtained a guard for the gears.

Colter began his employment with Marshfield in 1971 as a concrete salesman assigned to Marshfield's Cohasset office. ⁷ In 1975, Colter was promoted to the position of safety director at the Weymouth plant. In the summer of 1977, Marshfield moved the sand classifier to Weymouth and mounted it on the twenty-foot high steel structure. Although Colter was generally aware of the dangers of exposed gears, he was not aware that the machine required a guard. Personnel from the United States Bureau of Mine Safety and Health Administration frequently inspected the Weymouth facility, but never instructed Colter to obtain a bevel gear guard for the sand classifier because the gear box was mounted above ground.

On the day of the accident, Colter arrived at work sometime between 10:30 and 11 A.M. The plant's operation had started late that day because the cold weather had frozen some pipes. Shortly after lunch, Colter passed the "wet end of the plant" and heard a loud screaming "steel-on-steel" noise emanating from the gears of the sand classifier. Colter had never heard the machine make this kind of noise and, because the noise was so loud, he feared that the machine would come apart. Colter knew that the company's operations at that time were critical, and that, if the sand classifier broke, it would put Marshfield's client out of business. Responding to what he believed to be an emergency situation, ⁸ Colter instructed another employee get him a grease gun. After obtaining the grease gun, Colter drove a front-end loader to the steel structure supporting the sand classifier. Colter climbed onto the structure, and stood in the middle of the conveyor belt on two angle irons. He injected grease into the gears on one side and the noise stopped. Before Colter descended from the machine, his jacket caught in the gears, pulling in his arms. Colter suffered severe injuries requiring the amputation of his right arm below the elbow, amputation of his left index finger and causing substantial loss of function in his left arm.

1. Sufficiency of the evidence. Barber-Greene contends that the judge denied erroneously its motion for a directed verdict on the negligence counts because there was insufficient evidence that its conduct proximately caused the plaintiff's injuries. In determining whether the jury were warranted in finding Barber-Greene negligent, "[t]he question is whether the evidence, construed most favorably to the plaintiff, could not support a verdict for the plaintiff." Poirier v. Plymouth, 374 Mass. 206, 212, 372 N.E.2d 212 (1978). The plaintiff is entitled to judgment if "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff." Raunela v. Hertz Corp., 361 Mass. 341, 343, 280 N.E.2d 179 (1972), quoting Kelly v. Railway Express Agency, Inc., 315 Mass. 301, 302, 52 N.E.2d 411 (1943). To withstand a motion for a directed verdict on the issue of proximate causation, the plaintiff need only demonstrate that there was a greater likelihood that the harm of which the plaintiff complains was due to causes for which the defendant was responsible. Mullins v. Pine Manor College, 389 Mass. 47, 58, 449 N.E.2d 331 (1983). The plaintiff need not eliminate all possibility that the defendant's conduct was not a cause, but need only introduce evidence from which reasonable jurors could conclude that it was more probable than not that the injuries were caused by the defendant's conduct. Id. We have reviewed the evidence in the light most favorable to the plaintiff and we conclude there is no error.

On the issue of negligent design, Colter alleged that the design of the twin screw classifier was defective in two major respects. First, Colter argued that the sand classifier was defectively designed because it used outdated power transmission elements which required manual greasing rather than using fully enclosed elements which rotated in their own lubricating bath. The latter design eliminated the need to guard against injury from greasing the gears because the gears were self-lubricating. Given that the machine involved in Colter's accident used exposed power transmission elements, Colter argued that the sand classifier was deficient in a second respect, namely that the guard that covered the exposed gears was improperly designed. Colter argued that the gear guard was defective because it contained large openings that would allow sand and dirt to enter the gears thus ensuring that the guard would need frequent removal for cleaning, greasing, and other maintenance. Colter also argued that the gear guard was too cumbersome to be removed and replaced easily and that the guard, by its own improper design, invited permanent removal.

Colter presented the expert testimony of Egor Paul, a professor of mechanical engineering, who stated that the sand classifier itself was defectively designed because the power transmission elements were exposed to the dirty, sandy environment of the gravel yard and thus required frequent cleaning and greasing. Paul stated that designs which fully enclosed the power transmission elements in a self-lubricating bath had been available since the 1930's, and that these designs eliminated the need for greasing the transmission elements.

Paul's testimony was corroborated by Amelio Salera, the president of New England Road Machinery Co., who stated that his company did not manufacture and sell open-gear...