Higgins v. Paul Hardeman, Inc.

• Decision Date: 28 July 1970
• Docket Number: Nos. 33598,33599,s. 33598
• Citation: 457 S.W.2d 943
• Parties: Lawrence P. HIGGINS, Plaintiff-Respondent, v. PAUL HARDEMAN, INC., et al., Defendants, Paul Hardeman, Inc., Defendant-Appellant. Lawrence P. HIGGINS, Plaintiff-Respondent, v. PAUL HARDEMAN, INC., et al., Defendants, Steelweld Equipment Company, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 943

457 S.W.2d 943

Lawrence P. HIGGINS, Plaintiff-Respondent, v. PAUL HARDEMAN, INC., et al., Defendants, Paul Hardeman, Inc., Defendant-Appellant.

Lawrence P. HIGGINS, Plaintiff-Respondent, v. PAUL HARDEMAN, INC., et al., Defendants, Steelweld Equipment Company, Defendant-Appellant.

Nos. 33598, 33599.

St. Louis Court of Appeals, Missouri.

July 28, 1970.

Motion for Rehearing or for Transfer to Supreme Court Denied

Sept. 11, 1970.

Robertson, De Voto, Wieland & Lange, St. Louis, for Paul Hardeman, Inc.

Carter, Brinker & Doyen, Lee M. Carter, Clayton, for Steelweld Equipment Co.

Padberg, Raack, McSweeney & Slater, St. Louis, for plaintiff-respondent.

BRADY, Judge.

Plaintiff's father was fatally injured while working on a dump truck manufactured by defendant Paul Hardeman, Inc. and sold by defendant Steelweld Equipment Company. In the verdict directing instructions as to both defendants liability was submitted upon the hypothesis the '* * * hydraulic lift was defective in that the control roads were dangerous and not reasonably safe for their intended use, * * *.' Verdict and judgment were for plaintiff and against both defendants in the amount of $10,000.00. Defendants appeal contending plaintiff failed to make a submissible case against either of them. In determining this issue we are required to view the evidence in the light most favorable to plaintiff and the facts are herein so stated.

Hardeman admits it manufactured and Steelweld admits it installed and distributed the hydraulic lift. Neither introduced evidence at the trial other than a photograph of the truck. It is undisputed the accident was not caused by any mechanical failure or malfunction. Both defendants pled that deceased's own actions caused his death.

The warehouse supervisor for Millstone Construction Company, who was in charge of the truck drivers and equipment for the company, described the operation of this truck and hoist involved. From his evidence it appears that one of the two levers inside the cab engages the hoist itself while the other controls its upward and downward movement. This second lever was connected directly to a sensitive control rod located at the rear of the truck under the bed and above the frame. This rod was so sensitive that very slight pressure (between five and twenty-five pounds) upon it would cause the bed of the truck to drop very swiftly and hard. Five pounds pressure was demonstrated by the use of one finger. When the control rod was moved the steel lever inside the cab moved also. There were a number of normal maintenance duties which a truck driver had to perform and which required him to put the bed of the truck up in the air and to work under it. These included oiling the bearings, an entire grease job, some rear grease fittings where the body is hinged at the back of the truck, washing or painting the top or back of the cab of the truck itself, and removing mud, dirt or other debris from the bottom of the cab protector which extends over the top of the cab or from the top of the cab itself. Deceased had used this truck for a short time in the morning and then had returned it to the garage complaining that the tailgate on the truck was stiff and not operating properly. He was advised to oil those bearings underneath the forward edge of the bed of the truck which control the operation of the tailgate. Deceased then left this truck (referred to as the Ford truck) and drove a White truck the rest of the day. After returning to the yard in the White truck late in the afternoon plaintiff went to oil the bearings on the Ford truck about which he had earlier complained.

Deceased, a driver of some thirty-five years experience, was discovered in a standing position pinned against the back of the cab by the dump bed which was in a partially raised position. One of his arms was hanging down and below his hand was an oil can. One of his feet was on the top of the chassis and the other was tangled in the control rods so that the bed would not rise. After removing deceased's shoe and twisting his foot clear of the control rods, it was possible to raise the bed from deceased by use of the levers in the cab. The bottom of deceased's shoe showed a clear impression the exact size of the top of the exposed control rod.

Using plaintiff's Exhibit 6, the mechanism along the underside of the forward edge of the bed of the truck which deceased was attempting to oil at the time of his accident was explained. It was possible to have oiled the two outside bearings with it down, but, as a witness stated, he had never oiled even these bearings with the bed of the truck down and the center bearing of the mechanism could not be oiled with the bed down.

When the dump truck body was in a raised position, the control rod was plainly visible to one looking downward. There was nothing concealed or not open and obvious about the location of the control rod. This truck and two others on which Steelweld had installed similar hoists were the only ones the supervisor ever saw having a hoist where the control rod protruded above the frame. He testified that while deceased had driven and worked on trucks for many, many years, deceased had never had any experience with this particular truck before the morning of the day of the accident, or with any truck having this type hoist.

Plaintiff's expert witness Martin testified that the hydraulic lift system on this truck could not be considered reasonably safe for the reason that there is a killing force, the weight of the body of the truck, which can be released by some mechanism other than the intended control mechanism in the cab of the truck. An accidental operation of the control rod could operate the valves of the lift system equally as well as the intended lever in the cab of the truck, causing the dump body to drop. The truck could have been made reasonably safe by having the lever in the cab of the truck have a catch on it the way many levers in truck operation have, so that some positive releasing action to the lever in the cab of the truck must be taken before the dump body can lower, with the result the cab would be the only place from which the bed could be released accidentally or on purpose. The device should be such that it did not require an operator to set the device on the safe position, but rather that when the lever was put into an operating position to raise the dump body, it would automatically be in a safe position so that contact at the control rod at the back of the cab would not cause the body to come down. The witness stated his opinion this was an elementary safeguard.

Joseph H. Doering, Vice-President and Sales Manager of the defendant Steelweld Equipment Company, was called by plaintiff as a witness. He stated that his company had installed the hydraulic lift and the control rods in question according to specifications of the manufacturer, defendant Paul Hardeman, Inc. He further admitted that his company had installed no devices to hold the steel control lever in place in the cab of the truck, and further, that if this control lever could not be moved, then the exposed control rod under the bed of the truck could not have been moved by accidental contact with it. The witness also testified that with an angle iron welded over the exposed control rod, or a pin placed in the lever of the truck, a man would know that if he hit any of the controls under the bed of the truck the hoist would not come down on him. Accidental contact with the rod could also have been avoided by simply welding a piece of channel iron over the top of the rod, covering it, and then if it was stepped on the rod itself would not be touched. With such a channel iron piece welded in place, a person could jump on it or stand on it or do anything he wanted and not trip the control rod which would cause the bed of the truck to come down. Such a channel iton was put on the other Ford truck by the mechanical department at Millstone Construction Company a day or so after the deceased was killed and the job took approximately one-half hour labor and approximately $2.00 to $3.00 of material. There was testimony as to several other simple changes which could easily have been made. According to the warehouse supervisor, such changes were not made during the four years of use because the truck was out on a job and not directly under his control for much of the time, and further, that they had no reason to make such changes since they did not suspect this 'booby trap', as the witness described it, was present.

This particular type of dump truck had been manufactured since about 1958. The Steelweld Company had been distributing and selling the Daybrook dump truck bodies of this design from the time it was first manufactured in 1958, and sold eighty to one hundred a year. The production of this particular model was discontinued in 1962. A diagram showing a newer model hoist used on similar installations, which came on the market in 1962 (two years before the accident), wherein no part of the control rod protruded above the frame or chassis of the truck was introduced into evidence.

There was shoring available some three hundred feet or more away from where deceased was oiling the truck. It consisted of 4 4's or 6 6's weighing anywhere from twenty-five to forty pounds each. If the deceased was going to use shoring on the day in question, he would have had to go down to where it was and get either two 4 4's or one 6 6 and bring it back to where the truck was. The shoring was kept in a storage area and it was not the place to do jobs like...