Gordon v. Niagara Mach. and Tool Works, 76-3675
| Decision Date | 12 June 1978 |
| Docket Number | No. 76-3675,76-3675 |
| Citation | 574 F.2d 1182 |
| Parties | Mrs. Ivy L. GORDON, Plaintiff-Appellee, v. NIAGARA MACHINE & TOOL WORKS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Allan D. Shackelford, Clarksdale, Miss., for defendant-appellant.
Henry Woods, Little Rock, Ark., Morris Collins Bailey, Batesville, Miss., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Mississippi.
Before WISDOM, GOLDBERG, and RUBIN, Circuit Judges.
We affirm the judgment below on the basis of Judge Keady's careful and well-reasoned opinion reprinted as an appendix to this opinion.
AFFIRMED.
APPENDIX
MRS. IVY L. GORDON, Plaintiff
v.
NIAGARA MACHINE AND TOOL WORKS, Defendant
United States District Court, N. D. Mississippi, Delta Division.
Sept. 9, 1976.
In this diversity action, plaintiff, Mrs. Ivy L. Gordon, on June 9, 1969, lost four fingers of her left hand when operating a punch power press in the course of her employment by Poloron Corporation (Poloron). The press, which was manufactured by defendant Niagara Machine and Tool Works (Niagara), cycled unexpectedly while being manually operated by plaintiff and while her hand was within the jaws, or shearing area, of the press.
The facts surrounding this injury, as determined at the original trial, are as follows. The press was manufactured by Niagara and in 1954 sold directly to its customer, Poloron, at New Rochelle, New York. Five years later, Poloron moved the machine to its Batesville, Mississippi plant, the site of the accident. The press, equipped with a positive, mechanical, full-revolution clutch, is approximately ten feet tall, weighing 60 tons, and operates at a stroke standard, up and down, of three and a half inches. The press requires two-thirds of a second to cycle, or a full second for a cycle and a half.
The press was a multipurpose type, with an open back inclinable configuration, and adaptable to an almost infinite number of industrial uses calling for cutting, stamping, forming, etc. It was adapted to these various functions through installation of dies appropriate for the particular function, with the usual configuration involving attachment of the "female" portion of the die to the base of the press, and attachment of the "male" portion of the die to the ram of the press. When the press was activated, the overhead ram would cycle through a downward stroke toward the base, producing the desired result on whatever raw material had been placed in the die area, or "pinch point", of the press. The press could be set, by means of a selection button, to cycle continuously with an automatic feed of material at 90 strokes per minute or to "single-stroke" in a manually-fed operation.
The press being a multipurpose type, Niagara sold it "naked", that is, without dies Niagara was aware that its press was not completely "fail-safe", i. e., that it might cycle without being intentionally activated. Nowhere in its instructions did Niagara state that, even when a two-handed tripping device was used in manual feeding, there remained the hazard of unexpected cycling. The only warning which Niagara furnished at the time of sale was contained within the course of a 31-page service manual (P. Ex. 28) supplied to Poloron with the press; it stated "Never place your hands under the slides or between the die unless the power is off and the slides blocked up." Niagara did not place a label, decal or other sign on the machine warning of danger, nor did it advise its customer of any need to affix such a warning on the machine where it could be seen by press operators. Instead, Niagara left it up to Poloron to instruct its employees as to what was in the service manual.
and without guards or safety apparatus, although Niagara did manufacture and market a line of safety attachments. In accordance with the custom in the power press industry, the selection of dies and appropriate guarding or safety devices was left to the purchaser. In this instance Poloron, after acquiring the machine, removed the foot treadle which Niagara had installed for manual operation, and replaced it with a two-palm button system made by Schreder Corporation. The palm button system was a method often employed in manual feeding by industrial users, and was well known to Niagara, which itself marketed similar equipment. This system was activated by air pressure and required the use of both hands to operate. This was, to a considerable degree, a safety measure since the press then could not be activated if either hand was inside it. It was, however, well known in the power press industry, long prior to 1954, that two handed tripping devices afforded no protection in case of repeat stroke. 1948 American Standards Association Code for Power Presses (P. Ex. 26).
Mrs. Gordon was never notified or warned by Poloron of danger in placing her hands within the die area when the press was set for manual operation. On the day of her injury, she was operating the press, as instructed, in a single-stroke manually-fed shearing procedure. She was removing a piece of cut material from the pinch point of the press when the machine unexpectedly cycled, amputating her fingers. The unexpected cycling was, in our view, attributable to failure of the press clutch to hold after completion of the normal stroke. In any event, either this condition or some other mechanical failure of the press, and not the act of Mrs. Gordon, caused the press to "double trip" or repeat its stroke.
On the basis of the foregoing facts, this court concluded at the first trial that Niagara was negligent in failing effectively to warn press operators of the dangers of coming in contact with the die areas, and therefore was liable to an operator, ignorant of the hazard, who was injured by an unexpected cycling of the press, whatever the cause of such cycling, absent warning that the press, even when set for manual operation, had such proclivity. Our prior conclusion was grounded on the Restatement (Second) of Torts § 388 (1965):
Our judgment in favor of Mrs. Gordon was reversed on appeal, Gordon v. Niagara Machine & Tool Works, 506 F.2d 419 (5 Cir. 1974). The Fifth Circuit reversed for lack of evidence to support our finding that clause (b) of § 388 was satisfied, i. e., that Niagara had no reason to believe that Poloron's employees, including plaintiff, would not be informed by Poloron of the danger of bodily contact with the pinch point of the press because of the possibility of double tripping at any time. If, on retrial, we found that Niagara had no reason to expect Poloron to communicate to persons using the machine as press operators warning of such danger, the Court of Appeals further directed that we reexamine the proximate cause issue in light of Poloron's duty under Mississippi law to warn inexperienced employees of dangers of which they are ignorant and to enforce rules to render dangerous work as safe as reasonably possible.
Upon retrial additional evidence was submitted to the court on the questions remanded for our decision. For the following reasons, after mature consideration, we determine on the basis of the whole record and the additional evidence submitted that our prior conclusion of liability was correct, and we adhere thereto.
The Fifth Circuit accepted our original finding that the plaintiff had no reason whatever to believe that the Niagara power press, when set on single stroke, would cycle unless activated by the palm-press button and therefore she had no reason to think that it was dangerous to place her hands in the die area when manually feeding materials into the press in the customary manner. From the information in the service manual furnished with the press, however, the Court of Appeals was of the view that it "could be inferred that Niagara had reason to expect that from warnings by the employer (Poloron) the ultimate user (Mrs. Gordon) would discover the danger of double tripping." We thus address the question of whether Niagara could have expected Poloron to warn its press operators of the danger of unanticipated cycling of the press. It becomes important to examine closely what sort of warning Poloron received from Niagara. It read: "Never place your hands under the slides or between the die unless the power is off and the slides blocked up." (Emphasis added).
At the first trial, Niagara's sales manager noted this caution was located "in the section just behind the maintenance part of it (the service manual), where you get to the adjustments," and not elsewhere (Tr. 391-392).
At retrial plaintiff introduced highly credible expert testimony that in typical industrial plant practice, a service manual of the sort supplied by Niagara generally can be expected to be routed to plant maintenance or mechanical engineering personnel who retain it for their reference, and that service manuals ordinarily are not passed on to persons employed as punch press operators. In fact, instruction in the operation of a power...
To continue reading
Request your trial
-
Owens-Illinois, Inc. v. Zenobia
...this knowledge available." See, e.g., Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 344 (5th Cir.1982); Gordon v. Niagara Mach. & Tool Works, 574 F.2d 1182, 1190 (5th Cir.1978); Shell Oil Co. v. Gutierrez, 119 Ariz. 426, 434, 581 P.2d 271, 279 (1978); Oakes v. Geigy Agricultural Chemic......
-
Continental Ins. v. Page Engineering Co.
...achieves a legal--tort status--liability responsibility.8 Hopkins v. Chip-In-Saw, Inc., 630 F.2d 616 (8th Cir.1980); Gordon v. Niagara Mach. & Tool Works, 574 F.2d 1182, reh'g denied 578 F.2d 871 (5th Cir.1978); Griggs v. Firestone Tire & Rubber Co., 513 F.2d 851 (8th Cir.), cert. denied 42......
-
Banks v. Iron Hustler Corp.
...it is for the jury to determine. See Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402 (3d Cir.1981); Gordon v. Niagara Machine and Tool Works, 574 F.2d 1182 (5th Cir.), reh'g denied en banc 578 F.2d 871 (5th Cir.1978); Lenoir v. C.O. Porter Machinery Co., 672 F.2d 1240 (5th Cir.1982);......
-
Nesselrode v. Executive Beechcraft, Inc.
...F.2d 1295, 1303 (5th Cir.1971); Martinez v. Dixie Carriers, Inc., 529 F.2d 457, 465 (5th Cir.1976); Gordon v. Niagara Mach. and Tool Works, supra [574 F.2d 1182] at 1190 [ (5th Cir.1978) ] Duke, supra, 660 S.W.2d at 418. Duke dealt with a machine with an inherent defect that rendered it dan......