Dowdell v. US Industries, Inc.
| Decision Date | 30 April 1974 |
| Docket Number | No. 73-1424.,73-1424. |
| Citation | 495 F.2d 641 |
| Parties | Joseph E. DOWDELL, Plaintiff-Appellant, v. U. S. INDUSTRIES, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Martin S. Goldberg, Youngstown, Ohio, on brief for appellant.
John T. Milligan, Warren, Ohio, for appellee; John L. Pogue, Warren, Ohio, on brief.
Before CELEBREZZE and LIVELY, Circuit Judges, and WILSON,* District Judge.
This is an appeal from a directed verdict of dismissal in a negligence action. The plaintiff (appellant) was injured when a heavy lifting ring on a large metal press fell and crushed his leg as the equipment was being installed. At the completion of all proof in the case, the District Court concluded that the evidence of negligence on the part of the defendant was insufficient to warrant submitting the case to the jury and directed a verdict of dismissal.
The settled rule for testing on appeal the action of a trial court in withdrawing a case from the jury and directing a verdict is for the appellate court to review the evidence and determine whether it is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that a reasonable person could reach. Brady v. Southern Railway Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239 (1943); Fortner Enterprises, Inc. v. United States Steel Corp., 452 F.2d 1095 (6th Cir. 1971). In performing this function an appellate court is bound to view the evidence in the light most favorable to the party against whom the motion for directed verdict was made and give that party the advantage of every fair and reasonable inference that the evidence may justify. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962); Wright & Miller, Federal Practice and Procedure, Civil § 2524.
When all reasonable inferences are accorded the plaintiff and the evidence in this record is viewed most favorably to him, the following may be said to have been the testimony on the issue of liability. The defendant is a manufacturer of heavy machinery, including large metal presses used in the automotive industry. Its plant is located in Chicago, Illinois. Over a period of years the General Motors Corporation purchased for installation at its automobile assembly plant at Lordstown, Ohio, a number of metal presses manufactured by the defendant, including a number of presses designated as Model 150 OBI, meaning that the presses were open back inclinable presses having a 150 ton pressing capacity. Mounted on top of the Model 150 press was a ring or bail for use in the movement and location of the press by means of an overhead crane. The size of the press was reflected in photographs and drawings and can be surmised from the fact that the bail itself weighed approximately 200 pounds. The bail was mounted in a hinged manner and was capable of swinging from horizontal to vertical to horizontal. However, to maintain the bail in a semivertical position, both as a means of enabling the crane hook to be readily inserted and removed and as a safety factor to anyone assisting in this operation, blocks of metal, referred to as "keepers" or "stops", were welded to the press on either side of the bail hinge so as to prevent the bail from swinging more than 30° from vertical when disengaged from the crane hook. The welded metal keepers had a maximum strength or retaining capacity of 20,000 pounds. The bail was designed for lifting the press only when the press was vertical. The keepers were not designed to withstand the stress that would be imposed if the bail were used to lift the press from a horizontal position to a vertical position, but no warning was given by the defendant in this regard although the defendant was aware that the presses would be shipped in a horizontal position and that in erecting them they would have to be raised from a horizontal to a vertical position.
Sometime prior to January 1970 the defendant manufactured and sold a number of Model 150 presses to General Motors Corporation for installation at its Lordstown, Ohio, automobile assembly plant. These were manufactured at the defendant's Chicago plant. They were picked up at that plant and delivered to the Lordstown site by an independent motor carrier. There is no evidence, however, of any improper handling of the press by the motor carrier. Another independent contractor then removed the presses from the motor carrier trailers, raised them from a horizontal carrying position to a vertical operating position and installed them in the automobile assembly plant. The plaintiff, an iron worker of long experience and having prior experience in the installation of presses of this model, was employed by the contractor making the installation. In the course of installing one of these presses on January 16, 1970, the plaintiff mounted to the top of the press to disengage the crane hook from the bail. When he did so, the bail fell to a horizontal position, crushing the plaintiff's right leg. The plaintiff had performed this same operation on other presses of the same model, but had never experienced or known of a press on which the bail would fall to a horizontal position on removing the crane hook. As presviously indicated, no advice or warning was given by the defendant to those making the installation with regard to the condition or the use of the bail.
Although there was no evidence introduced at the trial regarding any inspection of the particular press upon which the accident occurred to determine the cause of the bail falling to a horizontal position, a mechanical engineer testified that it could only have occurred by reason of an absence of the keeper or by reason of the keeper failing to perform in the manner in which it was designed to perform. In the course of a general inspection of all newly installed presses following the accident, keeper bars were discovered to have been left off or broken off of four of the presses being installed at that time.
Upon the foregoing record the trial court concluded that the plaintiff had failed to carry the burden of proving any negligence upon the part of the defendant, stating that "there is no evidence that the press was defective when it left the defendant." In reaching this conclusion, the district judge relied upon the case of Gedra v. Dallmer Co., 153 Ohio St. 258, 91 N.E.2d 256 (1958), wherein the Ohio Supreme Court stated the law in that...
To continue reading
Request your trial
-
Higginbotham v. Mobil Oil Corp.
...(Mobil Brief at 21-22). We entertain no doubt that this contention correctly states the law. See, e. g., Dowdell v. U. S. Industries, Inc., 6 Cir. 1974, 495 F.2d 641, 644; Domany v. Otis Elevator Co., 6 Cir. 1966, 369 F.2d 604, 613; W. Prosser, Law of Torts § 39, at 218 (4th ed. 1971). More......
-
Drayton v. Jiffee Chemical Corporation
...incapable of producing injury." Gossett v. Chrysler Corp., 359 F.2d 84, 87 (6th Cir. 1966). See also Dowdell v. United States Industries, Inc., 495 F.2d 641, 645 (6th Cir. 1974); Krentz v. Union Carbide Corp., 365 F.2d 113, 119 (6th Cir. 1966); Shumard v. General Motors Corp., 270 F.Supp. 3......
-
Campbell v. Shearer
...492 (1961) ]. 697 F.2d at 1225. In looking at plaintiff's evidence in the light most favorable to plaintiff, Dowdell v. U.S. Industries, Inc., 495 F.2d 641, 643 (6th Cir.1974), I conclude that (a) plaintiff's evidence was sufficient to create a jury issue on the question of whether the city......
-
Hunter v. SMS, Inc.
...to the nonmovant, Galloway v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077, 1089, 87 L.Ed. 1458 (1943), and Dowdell v. U.S. Industries, 495 F.2d 641, 643 (6th Cir.1974), there is either a complete absence of proof on the issues or no controverted issues of fact upon which reasonable men ......