Daleiden v. Carborundum Company

• Decision Date: 10 March 1971
• Docket Number: No. 19953.,19953.
• Citation: Daleiden v. Carborundum Company, 438 F.2d 1017 (8th Cir. 1971)
• Parties: Raymond W. DALEIDEN, Appellee, v. The CARBORUNDUM COMPANY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

438 F.2d 1017 (1971)

Raymond W. DALEIDEN, Appellee, v.The CARBORUNDUM COMPANY, Appellant.

No. 19953.

United States Court of Appeals, Eighth Circuit.

March 10, 1971.

COPYRIGHT MATERIAL OMITTED

Mahoney, Dougherty, Angell & Mahoney, Richard P. Mahoney, John F. Angell, Minneapolis, Minn., for appellant.

Edward H. Borkon, Schermer, Gensler, Schwappach, Borkon & Ramstead, by Irvin E. Schermer, Minneapolis, Minn., for appellee.

Before JOHNSEN, Senior Circuit Judge, and VAN OOSTERHOUT and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

The plaintiff, Raymond W. Daleiden, brought this diversity action against the defendant, the Carborundum Company, a Delaware corporation, to recover damages for injuries inflicted by a grinding wheel manufactured by the defendant.The case was tried to a jury in the United States District Court for the District of Minnesota on the theories of negligence and strict liability.Following a general verdict awarding $65,000 in damages to the plaintiff, the defendant moved for judgment notwithstanding the verdict or, in the alternative, for a new trial.The defendant appeals from the District Court's denial of its motion.We affirm the District Court.

In considering whether the trial court erred in denying the defendant's motion for judgment n. o. v., we examine the evidence in the light most favorable to the plaintiff.Land O'Lakes Creameries, Inc. v. Hungerholt, 319 F.2d 352(8th Cir.1963);Ford Motor Co. v. Zahn, 265 F.2d 729(8th Cir.1959);McCormack v. Hankscraft Company, 278 Minn. 322, 154 N.W.2d 488(1967).We have examined the transcript of the trial and find that the plaintiff's brief fairly sets out the facts as proven.

On November 14, 1963, the plaintiff, while operating a motor-driven machine equipped with a cutting wheel manufactured by the defendant, sustained severe arm injuries as a result of the wheel's shattering.The plaintiff was an employee of the Spancrete Division of the North Star Concrete Company, a manufacturer and installer of concrete slabs.The wheel which shattered was from a shipment of twenty-eight wheels manufactured by the defendant and delivered to the Spancrete Company in August of 1963.

The wheels consisted of layers of nylon impregnated with a bonding material containing abrasive particles.The American Safety Code required the manufacturer to designate on each wheel its maximum rotational speed.

The wheels were used to cut concrete slabs at the job site.They were mounted on 18-horsepower, gasoline-driven Cardinal machines with two spindles near the front, one of which extended horizontally to the right and the other to the left.The cutting wheel contained a center arbor hole which permitted the wheel to be slipped over one of the spindles and against a solid flange forming part of the machine.A paper blotter or disc, likewise containing a center arbor hole, was customarily placed on either side of the wheel.The wheel was held in place by a second flange positioned on the opposite side of the wheel and tightened by screws.The operator stood at the rear of the machine and propelled it backwards or forwards by pushing or pulling on handles.The cutting wheel was lowered or raised to and from the cutting area by means of a hand crank.

The Spancrete Company began using a 22-inch wheel manufactured by the defendant in 1963.The wheel had the name Carborundum stenciled at the top and bore the notation "MAX RPM 24 30".The plaintiff understood this to mean that the wheel could not be used safely beyond the speed of 2400 to 3000 revolutions per minute.The Cardinal machine was stamped to indicate an output speed of 2600 revolutions per minute at top speed.It was fitted with a guard large enough to extend over the 22-inch wheel.

During August of 1963, the Spancrete Company decided to increase the maximum thickness of its slabs from eight to ten inches.The 22-inch Carborundum wheel was not large enough to cut this size slab.Clifford Strong, the defendant's managing sales representative, came to the Spancrete plant to discuss with Lester Fisher, its plant manager, the size wheel necessary to cut the 10-inch planks.Both Strong and Fisher determined that a 26-inch wheel should be used, although they were aware that this size wheel would not comply with the American Safety Code standards.The maximum speed at which a 26-inch wheel should be operated under the code was 2056 r. p. m. Strong did not advise Fisher to drop the speed of the Cardinal machine to the maximum safe speed for 26-inch wheels.

An initial order for twenty-five wheels was taken by Strong from Fisher on August 14, 1963.These were manufactured as a trial order at defendant's Logan, Ohio, plant from specifications prepared by its development personnel.There was an overrun of three wheels, so that twenty-eight were actually manufactured and shipped.

Only five out of the twenty-eight wheels were tested prior to shipment.The only balancing test performed was a static test which did not involve inspection of the wheels while they were in motion.There was expert testimony that a dynamic test could and should have been done since it would approximate the actual use of the wheel and was designed to disclose imperfections not discernible by static balance testing.Undisclosed imperfections could cause a whip to occur during the cutting operation, resulting in wobble, sideloading and breakage.

The twenty-eight wheels reached the Spancrete Company during the latter part of August, 1963.They were first used on November 14, 1963 at the Pine Ridge School project in Newport, Minnesota.When the 26-inch wheels were brought to the job, it came to Fisher's attention that the existing guards on the Cardinal machines did not fit over the 26-inch blades.He ordered them removed and instructed the workmen to proceed without them.

The plaintiff was one of the workmen on the Pine Ridge project.He had been employed full time by the Spancrete Company for about three months prior to the accident.He was twenty-seven years of age and prior to working for the Spancrete Company had worked on a farm.Prior to the accident of November 14, 1963, the plaintiff had used only 22-inch wheels.He had never had a blade explode while he was operating the cutting machines and was not aware this could occur.He knew the guard on the Cardinal machine was for safety purposes, but assumed it was to prevent someone from falling onto the machine or to keep sparks from flying.He had never been told that the guard was to prevent injury to an operator in the event of an explosion of a wheel.

On the day of the accident, Daleiden's foreman told him to cut a 24- by 24-inch hole in the 10-inch planks forming the roof of the building.When Daleiden got the Cardinal machine, there was a 22-inch wheel mounted on it.He noted that there was no guard on the machine and brought this to the attention of his foreman.He was instructed to cut the hole without it.

Pre-cuts were made on the four sides with the 22-inch wheel.This involved partially cutting through the cement slabs with the 22-inch wheel.To get through the last few inches, he had to use a 26-inch wheel.The foreman told him that these were located in a box in a company truck.There were two 26-inch Carborundum wheels located in the box, and he took out one and inspected it.Other than the name Carborundum, there was no writing on the wheel.There were no blotters in the box.In general appearance and texture, the 26-inch wheel was similar to the 22-inch wheels with which he was familiar.He had never used a 26-inch wheel before.He mounted the wheel on the left-hand spindle and completed the two cuts which were parallel with the length of the planks.He then lined his machine with the markings for the first cross cut, lowered the cutting wheel and was just about finished cutting the concrete when the wheel shattered without warning.He was running the wheel at top speed at the time and was in the process of cranking the wheel down.The fragments came from the bottom of the machine and struck the underside of his forearm.

Prior to the accident, he had not bound, bent or crimped the wheel in the process of making the cut, and the up-and-down cranking movements of the machine had not caused the wheel to move in the cut.He had not at any time prior to the accident sawed away from the cut or moved off the direct line of the cut.

Within a week after the accident, employee Eugene Anderson took the balance of the Carborundum shipment to North Dakota for work on a project there.He used the wheels on the same Cardinal machine and testified they did not perform properly when used.They were not rigid enough for the work, developed a bad wobble when the cut was started, and vibrated so badly that a 3/16-inch cut would expand into a 3/8-inch cut.They would fly apart both at high and low speeds, and upon contact of the wheel with the cement being worked, he noted that the fabric would peel and come unbounded and the wheels would disintegrate.He estimated that he broke about fifteen of these wheels.A guard had been placed on the machine, but this did not keep fragments from flying into the air, which on many occasions came quite close to him.

In view of the fact that the case was submitted to the jury on both negligence and strict liability theories, and that a general verdict was returned, we can sustain that verdict only by satisfying ourselves that the jury could have relied on either theory.

This being a diversity case, Minnesota law controls.Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188(1938).

The defendant has three bases for its contention that the trial court should have entered judgment n. o. v. While the defendant has stated these contentions as questions of law, the essence of them is that the plaintiff's evidence, with respect to two elements of his cause of action, was insufficient to send the case to the jury.

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