Hartman v. Miller Hydro Company

• Decision Date: 28 June 1974
• Docket Number: No. 73-1803.,73-1803.
• Citation: 499 F.2d 191
• Parties: Donald Dee HARTMAN, Plaintiff-Appellant, v. MILLER HYDRO COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

499 F.2d 191 (1974)

Donald Dee HARTMAN, Plaintiff-Appellant, v. MILLER HYDRO COMPANY, Defendant-Appellee.

No. 73-1803.

United States Court of Appeals, Tenth Circuit.

Argued April 16, 1974.

Decided June 28, 1974.

Rehearing Denied July 23, 1974.

Bradley Post, Wichita, Kan. (Orval L. Fisher, Wichita, Kan., on the brief), for plaintiff-appellant.

Gerald Sawatzky, Wichita, Kan. (Mikel L. Stout, Wichita, Kan., on the brief), for defendant-appellee.

Before LEWIS, Chief Judge, and HILL and SETH, Circuit Judges.

HILL, Circuit Judge.

This products liability case, based on diversity, arises out of personal injuries sustained by the appellant Donald Dee Hartman, when his trousers, and subsequently the middle region of his body, became entangled in the revolving shaft of a bottle washing machine manufactured by appellee Miller Hydro Company (Miller Hydro) and owned by his employer, The Pepsi Cola Bottling Company (Pepsi Cola).

Hartman instituted suit against Miller Hydro in the United States District Court for the District of Kansas, premising liability upon ordinary negligence and strict liability. Essentially, the latter claim alleged faulty design by Miller Hydro in that it (1) failed to install a guard over the revolving shaft, and (2) failed to provide an emergency stop switch for the shaft, near the operator's station. Upon hearing all of the evidence and instructions, the jury returned a verdict for Miller Hydro.

On appeal, Hartman contends the trial court erred in instructing the jury that liability was dependent on Miller Hydro's knowledge of the probable danger, and in requiring him to prove such knowledge.

Miller Hydro, a Georgia corporation engaged in the design and manufacture of large machines, custom built a large bottle washing machine for the Pepsi Cola plant in Wichita, Kansas. It was designed to receive dirty pop bottles from a conveyor (which was driven by a revolving shaft), convey them into the machine where they were washed, and discharge them at the other end. The machine itself was a component part of connecting machines making up a production line consisting of a decaser (removes bottles from cases), an extension tongue (takes bottles to washer), and a filler (fills and caps bottles).

The machine was manufactured, assembled, tested and inspected at Miller Hydro's Georgia plant, and then dismantled and shipped to Wichita in pieces where it was reassembled by Pepsi Cola employees under supervision of Miller Hydro installation engineers.

Once in operation (early in 1969), bottles tended to jam up or upset before entering the machine, requiring an employee to stand near the machine to remedy the situation. Although the proper place for an employee to position himself was in dispute at trial, it appears that employees often stood in the vicinity of the drive shaft. They would lean against, or over, the shaft while setting up or unjaming bottles. Some even stepped on the revolving shaft while climbing onto the machine.

The drive shaft itself was modified by Pepsi Cola personnel subsequent to the installation of the bottle washing machine. A sprocket was changed to increase the shaft's speed. The record also discloses that approximately six months before Hartman's injury another employee's apron became caught in the unguarded shaft. This person was able to extricate himself, however, and avoided injury.

Hartman's injury occurred on February 23, 1970, about a year after the new bottle washing machine had been in operation. He had positioned himself near the shaft to operate the machine. While leaning over the shaft to set up some dirty bottles that had fallen over, as he had done on other occasions when operating the machine, his pants became caught in the shaft and he was pulled into its moving parts, resulting in injury. At that time there was no guard over the shaft and no stop switch in the near vicinity. One stop switch was located farther down the machine, and another was located on a wall on the other side of the machine.

After the evidence was presented the trial court instructed the jury on negligence, contributory negligence, strict liability as defined in § 402A of the Restatement of Torts 2d,¹ and assumption of risk. As regards strict liability the jury was instructed, inter alia, that plaintiff must prove the defendant

had knowledge of the probable danger of such defect in design, plan and manufacture of the machine, when used for the purpose for which intended and in the manner intended.

Hartman contends this instruction erroneously required proof of an element that need not be established under a cause of action premised on strict liability.

We have reviewed the record and find that it is unnecessary to consider the propriety of the trial court's instructions. Instead, we think the dispositive issue is whether strict liability instructions were appropriate.²

A party is entitled to an instruction on his theory of the case only if the theory is supported by competent evidence. General Motors Corp. v. Walden, 406 F.2d 606 (10th Cir. 1969). Hartman's theory, strict liability, necessarily required him to put forth evidence that the machine was defective and that its defective condition created an unreasonable danger to the user, to merit strict liability instructions. We believe he failed in both respects.

As concerns the product's defectiveness, the relevant evidence may be summarized as follows. It was virtually undisputed at trial that the machine's design included provision for a guard over the shaft. A Miller Hydro employee...