George v. Morgan Construction Co., 70-586.

• Decision Date: 30 January 1975
• Docket Number: No. 70-586.,70-586.
• Citation: 389 F. Supp. 253
• Parties: Donald E. GEORGE v. MORGAN CONSTRUCTION CO. v. U. S. STEEL CORP.
• Court: U.S. District Court — Eastern District of Pennsylvania

389 F. Supp. 253

Donald E. GEORGE v. MORGAN CONSTRUCTION CO. v. U. S. STEEL CORP.

No. 70-586.

United States District Court, E. D. Pennsylvania.

January 30, 1975.

COPYRIGHT MATERIAL OMITTED

Herbert Kolsby, Kolsby & Wolf, Philadelphia, Pa., for plaintiff.

Edward W. Maderia, Jr., Philadelphia, Pa., for defendant.

OPINION AND ORDER

JOHN MORGAN DAVIS, Senior District Judge.

This case has been tried and the jury returned a verdict in favor of the plaintiff in the amount of $750,000. The defendant Morgan Construction Co. ("Morgan") filed a post trial motion for judgment n. o. v., or in the alternative, for a new trial.

The case arose from the injury of a steel employee, Donald George ("George"), who was working at U. S. Steel's bar mill in Fairless Hills, Pennsylvania. In the course of his employment by U. S. Steel, and while working in this mill, he was hit by a "cobble" and severely injured. A "cobble" is a piece of round stock which, while still in process, and at a temperature in excess of 2000°F breaks free of the mill machinery which is processing it, and is ejected into the part of the mill where the men are working. He was dissatisfied with the compensation he obtained from Workmen's Compensation, and accordingly sought recovery against Morgan, the manufacturer of the mill, under two theories (1) Strict liability under § 402A of the Restatement (Second) of Torts, alleging a design defect, and (2) negligence in designing the mill. The plaintiff withdrew the former theory and allowed the case to go to the jury on negligence.

A rolling mill is a complex of machinery, which generally consists of a track ("pass line") connecting a series of stands or roll housings through which hot pieces of steel are rolled and reduced to a linear steel product with a specified profile or cross-section. There are many different types of rolling mills including blooming, billet, rod, and bar mills. In the present case, we are dealing with a bar mill, which heats steel billets to temperatures in excess of 2000°F. The bar mill is capable of rolling several standard profile configurations, such as rounds, flats, and angles, and a wide variety of dimensions for each configuration.

The track, or pass line, of the Fairless Hills bar mill is laid out in a straight line 250-300 feet long. On one side of the track, referred to as the "inside" or "drive" side, are the motors for each of the mill's 18 stands. On the other side is a large open floor on which the mill crew works. Against this "working" wall and 20 feet above the floor is a glass-enclosed room 80 feet in length called the pulpit, which houses the control equipment for the motors and other components of the mill's machinery.

Each stand contains rolls and guides. As the hot billets proceed from stand to stand they enter each stand's entry guides and exit from each stand's delivery guides. Between these two sets of guides the metal is shaped by the action of the rolls.

Each stand is denominated either horizontal or vertical (edging) depending on the direction of the action of its rolls. The open spaces between the last six stands are called looping tables. There devices called loopers form a bow or loop in the billet which maintains a necessary degree of flexibility in the metal.

As is typical in the industry, the Fairless bar mill is composed of three sections. The "roughing" and "intermediate" sections comprise the first 12 stands and are controlled from the pulpit by the second or assistant speed operator. Stands 13 through 18 are the "finishing" section or train, and they are each individually controlled by the first speed operators.

The loopers are controlled by the looper operators. As a billet proceeds through the mill it starts slowly and gains speed as it is reduced more and more at successive stands. The greatest speed attained by any product on the bar mill is 30 mph. for 3/8 " rounds at stand 18. At the same time it is elongated far beyond the original length of the billet. The bars exit from the last stand into a 400-foot cooling bed.

Normally a billet completes its passage through the bar mill without incident and emerges as a product with the desired profile salable to U. S. Steel's customers. At times, however, a billet leaves the mill before entering the last stand. This is called a "cobble". Most cobbles are "front end" cobbles where the head end of a billet passes through the delivery guides of one stand but fails to enter the entry guides of the next. Instead it spills out onto the mill machinery or the floor. When this occurs, the mill is shut down and the cobble is "cleared" by winding it up and removing it by crane. Cobbles typically occur on the Fairless bar mill at the rate of about two per eight-hour shift or "turn", but many more may occur at any given time. Their incidence is largely unpredictable on an individual basis: cobbles may occur at any time or anywhere on the mill.

There are four prime reasons for cobbles: (1) a defect in the steel; (2) an improper steel temperature; (3) an improper mill setting (e. g. worn or improperly adjusted rolls or guides); and (4) improper mill control (e. g. incorrect control of speed or looping action). These are all aspects of operation, not design. It is possible in theory to run a mill with no cobbles but this has proved to be impossible as a practical matter. Both designers and operators of bar mills, and indeed all the parties in this present lawsuit, realize that cobbles are bound to occur given present technology despite their attempts to eliminate or minimize them.

Morgan's design for the Fairless bar mill contained tri-faceted metal shields on the drive side of the looping tables between stands 12 through 18 but, in accordance with Morgan's conscious decision, contained no guards, shields or other structures on the working side of the mill intended to come between cobbles and workmen in the proximity of the mill.

As stated, plaintiff concedes that cobbles can not be engineered out of such a steel mill. However, he contends that this failure to put up "cobblescreens" or guards to protect the workers from this inevitable danger constitutes negligent design in constructing the mill.

Defendant's argument in this case is that the failure to put up cobblescreens was a necessary evil, since the danger created by putting them up was greater than the danger of not putting them up. It argues that the erection of this safety device would block the view of the people controlling the steel mill from the pulpit. The plaintiff counters that the mill could have been so designed that the cobblescreens could have been erected without blocking the pulpit, by putting the pulpit on the drive side of the mill instead of the working side. We agree with the plaintiff's contention. As stated in David Hume, Dialogues Concerning Natural Religion, Part XI, Norman Kemp Smith edition (Edinburgh: Nelson & Sons, 1935), p. 204:

. . . did I show you a house or palace, where there was not one apartment convenient or agreeable; where the windows, doors, fires, passages, stairs, and the whole economy of the building were the source of noise, confusion, fatigue, darkness, and extremes of heat and cold; you would certainly blame the contrivance, without any further examination. The architect would in vain display his subtlety, and prove to you that if this door or that window were altered, greater ills would ensue. What he says, may be strictly true: the alteration of one particular, while the other parts of the building remain, may only augment the inconveniences. But still you would assert in general, that if the architect had had skill and good intentions, he might have formed such a plan of the whole, and might have adjusted the parts in such a manner, as would have remedied all or most of these inconveniences.

A good architect would have designed the house in such a way as to avoid these disadvantages, so that one would not have to choose between a design that was bad and one that was worse. And in the same way, a non-negligent Construction Company would have designed the steel mill in such a way as to avoid requiring the Steel Company to choose between the Scylla of no cobblescreens and the Charybdis of an obstructed view from the pulpit.

Defendant argues, however, that plaintiff has not introduced sufficient competent, probative evidence to meet his burden of proving that defendant was negligent in its design of the bar mill. Both parties agree that one element of proof is an alternate design of the mill that would have prevented plaintiff's accident, would have been reasonably safe, and would have been functionally feasible within the state of design development during the time (1951-3) when the bar mill was constructed and sold. In other words, the plaintiff had to show what the defendant could and should have done differently. There were three expert witnesses whose testimony satisfies plaintiff's burden of proof as to this element: Joseph E. Molle, Miles Morgan, and Alfred E. Baccini.

Joseph E. Molle is the roller on the Fairless bar mill, which is the highest non-management position. He had worked for U. S. Steel for 37 years and worked in the bar mill for the 20 years since it was first installed. During those 20 years he held practically every job in the mill. George was a member of Molle's crew when he had his accident, but Molle was not present at that time. He testified that the mill would be a lot safer if the pulpit were placed on the drive side of the mill rather than the working side, or that there could be two pulpits: one on each side of the mill.

As stated, Molle was not testifying as a factual witness, on this point, but as an expert witness. Although admittedly not an engineer or a man with other academic credentials, Molle was an experienced workman in the bar mill. As such, he is qualified to render expert testimony in this case. Globe Indemnity Co. v. Highland Tank and Mfg. Co., 345...