Heichel v. Lima-Hamilton Corp.

• Decision Date: 29 June 1951
• Docket Number: Civ. A. No. 6401.
• Citation: 98 F. Supp. 232
• Parties: HEICHEL v. LIMA-HAMILTON CORP.
• Court: U.S. District Court — Northern District of Ohio

98 F. Supp. 232

HEICHEL v. LIMA-HAMILTON CORP.

Civ. A. No. 6401.

United States District Court N. D. Ohio, W. D.

June 29, 1951.

William A. Finn, Toledo, Ohio, Pugliese, Troiano & Pugliese, Pittsburgh, Pa., for plaintiff.

Bentley, Neville, Cory & Boesel, Lima, Ohio, for defendant.

KLOEB, District Judge.

This matter is before the Court on motion of defendant for summary judgment, together with motion of plaintiff for dismissal of motion for summary judgment because the defendant has raised issues of fact in its pleadings, brief and affidavit and has abandoned its motion for summary judgment.

The petition alleges that plaintiff, on September 23, 1948, was employed as an oiler by one Frank W. Albert, who conducted a strip coal mining operation in the State of Pennsylvania, and that plaintiff was injured by being thrown against a revolving, unguarded shaft and cog wheel on a strip mining shovel manufactured by defendant and sold to plaintiff's employer in the early part of 1948.

The question presented is whether or not on the basis of the allegations of the petition and the admitted facts a cause of action is stated in favor of the plaintiff, or whether the defendant is entitled to summary judgment.

The issues raised by the pleadings are:

1. Was the defendant negligent in failing to install a guard for the revolving mechanism?

2. If so, was the defendant's negligence the direct and proximate cause of plaintiff's injuries, or was it superseded by intervening negligence of plaintiff's employer, which relieves the defendant from liability to plaintiff as a matter of law?

3. Was the plaintiff guilty of contributory negligence as a matter of law which would bar a recovery against the defendant?

Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., with reference to summary judgment provides:

"(b) A party against whom a claim, * * * is asserted * * * may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

"(c) * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *" (Emphasis added.)

This rule was construed in Toebelman v. Missouri-Kansas Pipe Line Co., 3 Cir., 1942, 130 F.2d 1016, and the Court there said, at page 1018: "It is now well settled that summary judgment may be entered for either party if the pleadings, depositions, admissions on file and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Civil Procedure Rule 56. Stated conversely, a substantial dispute as to a material fact forecloses summary judbment. McElwain v. Wickwire Spencer Steel Co., 2 Cir., 1942, 126 F.2d 210; Miller v. Miller, 1941, 74 App.D.C. 216, 122 F.2d 209; Whitaker v. Coleman, 5 Cir., 1940, 115 F.2d 305. Upon a motion for a summary judgment it is no part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Ramsouer v. Midland Valley R. Co., D.C.Ark., 1942, 44 F.Supp. 523. All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment. Weisser v. Mursam Shoe Corporation, 2 Cir., 1942, 127 F.2d 344 145 A.L.R. 467."

The motions have been submitted on affidavits and deposition. There is attached to the motion by defendant the affidavit of C. W. Bruening, an employee of the engineering department of the defendant, who installed the revolving mechanism and whose negligence, if any, in failing to install the guard which had been provided is chargeable to the defendant. There is attached to the plaintiff's motion the affidavit of the plaintiff in reply. The deposition of Mr. Bruening was also taken by the plaintiff.

In the affidavit of Mr. Bruening, it is stated that his duties consisted of servicing and supervising experimental equipment in use by customers of defendant; that the defendant designed a metal box guard to be installed over the shaft, pulley wheel, bracket and pump valley of the said shovel; that, on September 5, 6 and 7, 1948, he supervised and assisted the employees of said Albert in the installation of the jack shaft, pulley wheel, bracket, extension shaft and new oil pump; that said pump did not work satisfactorily, and that the original pump was reconnected; that while the shovel was in operation the shaft revolved rapidly, and that the pulley wheel, bracket and extension shaft projected about 4½ inches into the walkway on said shovel and was located about 38 inches above the floor; that the said installation was completed and the original pump reconnected about 7 o'clock P.M. on September 7, 1948; that he was then advised by one Bob Simonds, an employee of said Albert, that it was too late to complete the installation of the guard that night, and that said Albert's employees would complete the installation of the metal guard the next morning; that it was only necessary in order to complete the installation of the guard to drill three holes in the wall of the shovel and to bolt the metal guard thereto in order to safeguard said pulley wheel, bracket and extension shaft; that he thereupon left the job and returned to Lima; that said pulley wheel, bracket and extension shaft, in its location on the shovel, was open and exposed to view, and the fact that the same revolved rapidly while the shovel was in operation was readily observable by any one working on the shovel.

The deposition of Mr. Bruening was taken by the plaintiff on February 2, 1951. He testified that the shovel in question was sold to Mr. Albert, and that the witness went to Philipsburg, Pennsylvania, on September 4, 1948, for the purpose of doing some work on the machine, under orders from his superiors in the engineering department. At that time he put on a plunger type oil pump in place of a rotary type pump which had not been operating. He described the changes he made in putting on the substituted pump and, because that did not work, replacing the original pump, and stated as to why he did not put on the guard (pages 6 and 7 of the deposition):

"* * * In finding that, we had to remove the belt from the pump and apply the old plunger pump so that the machine could go back into operation and, at that time, it was getting kind of late. Went to put a guard up; asked the man if he had an electric motor so we could drill some small holes. Said yeah, they had one but didn't have it up there, so then he said, `Well, we'll have to get it'. That was about seven o'clock at night —

"Mr. Boesel: On what date? A. On September seventh, p.m. I asked them if they would put the guard on when they got the electric drill. I understood he was going to put it on. He told me, he said he would get the drill and put it on the next morning.

"Q. Who told you that? A. Mr. Simmons, Bob Simmons. I think that is the name. It has been quite a while, and since that time, he denies that he has said that, that he would put it on." (Emphasis added.)

He testified he worked on the actual installation and was responsible for the supervision of the work and directed the way it should be done. He said that, as the machine was originally equipped, it did not need a guard because the revolving machinery was down underneath. He testified that he thought that Mr. Simond's position in the employ of Mr. Albert was that of mechanic, and that one Ed Hewitt was the foreman on the job. As to the conditions when he left around 7 o'clock P.M. on September 7, 1948, he testified (pages 10 and 11 of the deposition):

"Q. On September 7th, around seven o'clock in the evening when you left, in what condition did you leave the modification, that is, the change from the Bowsher plunger system to the Bowsher rotary system? A. We had the belt off of the pump from the driveshaft off, and the shaft was out there but we didn't have the guard on it, but at that time it didn't look too dangerous unless somebody deliberately crawled up on it, in my estimation.

"Q. It was an open — A. Shaft, yes, but there also was a stationary point sticking out at the end of it, with a hose running up to it.

"Q. The cogs were open, were they not? A. No, the cogs were not open, no sir. There were no cogs open at all. All it was was a little bracket came out, like this, (indicating), shaped similar to that (indicating). Comes out like that, and that, and in the end of this, there is a rotary seal and it hangs down and this bracket was about that wide and about that long (indicating), across these parts here, and bolted to a round pulley.

"Q. There was no guard over the cog wheel? A. There was no cog wheel there. There was no guard over the pulley wheel.

"Q. The pulley wheel? A. That is right.

"Q. On September the seventh, 1948, when you left machine # 3504, was there a wheel with a bracket attached to it, extending into the aisle of the shovel? A. Yes, sir." (Emphasis added.)

The affidavit of plaintiff admits that, in the Spring of 1948, the defendant sold the coal stripping shovel to his employer, Frank W. Albert; that the oil pump with which it was originally equipped did not work satisfactorily; that the defendant designed a jack shaft, pulley, bracket and extension shaft, for the purpose of being installed on said shovel, and designed a metal guard to be installed over the extension shaft, pulley wheel, bracket and pump pulley; that C. W. Bruening, an employee of defendant, did supervise the installation of the same for defendant; that the said oil pump did not operate satisfactorily; that, while the said shovel was in operation, said pulley, bracket and extension shaft, which extended about 4½ inches above the walkway of the shovel, and was located about 38 inches above the floor...