High Voltage Engineering Corporation v. Pierce, 8071.

• Decision Date: 27 April 1966
• Docket Number: No. 8071.,8071.
• Parties: HIGH VOLTAGE ENGINEERING CORPORATION, a Corporation, Appellant, v. C. Ballard PIERCE and Sandia Corporation, a Corporation, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

359 F.2d 33 (1966)

HIGH VOLTAGE ENGINEERING CORPORATION, a Corporation, Appellant, v. C. Ballard PIERCE and Sandia Corporation, a Corporation, Appellees.

No. 8071.

United States Court of Appeals Tenth Circuit.

March 29, 1966.

Rehearing Denied April 27, 1966.

Bryan G. Johnson, Albuquerque, N. M. (Marshall G. Martin, Albuquerque, N. M., with him on brief), for appellant.

George Harris, Jr., and Allen C. Dewey, of Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, N. M. (Rodey, Dickason, Sloan, Akin & Robb and T. M. Gemberling, Albuquerque, N. M., with them on brief), for appellees.

Before MURRAH, Chief Judge, PICKETT, Circuit Judge, and LANGLEY, District Judge.

MURRAH, Chief Judge.

This appeal is from a judgment on a jury verdict in an action by appellee Pierce against appellant High Voltage for personal injuries caused by a radioactive beam from an electron accelerator manufactured and supplied by High Voltage to the intervenor Sandia Corporation,¹ Pierce's employer.

The Van deGraaff two million volt accelerator was designed and used to propel electron beams at target material for nuclear experimental purposes. This is accomplished by spraying electrons on a moving belt for transmission to a high voltage terminal. From the terminal they flow to a cathode for emission into the accelerator tube and propulsion to the experiment target at the end of the tube. Four switches control the accelerator's operation. One switch turns on the power and another controls the belt and its drive motor. A third switch determines the amount of voltage on the terminal. Another, the beam switch, allows the electrons to be emitted as a beam from the cathode into the accelerator tube. The electron beam causes radiation and potential human danger in the target area.

The accelerator is housed in a concrete chamber or "target room". On the date of the accident, a Sandia Corporation employee, trained by appellant, was operating the drive motor and belt to dispel a 1,700,000 volt "self-charge" on the voltage terminal. The beam switch was off. The appellee-Pierce asked the operator if it was safe to enter the accelerator chamber to set up an experiment. After being told it was safe because the beam switch was off, Pierce entered the chamber despite the blinking of warning lights and a sounding horn indicating that the drive motor was operating. Two minutes later he left the room and discovered the injuries complained of.

The theory of appellees' case as correctly submitted to the jury is that a radioactive beam referred to as "dark current phenomenon" was emitted from the accelerator tube while the beam switch was off and the accelerator was in a condition of self-charge at high voltage. The court defined the issues by telling the jury that the accelerator was a dangerous instrumentality when emitting an electron beam; that it could and did emit an electron beam under the conditions prevailing at the time the appellee was injured; and that High Voltage knew that this phenomenon could occur. The issues were further sharpened by stating the contention of appellees to the effect that they did not know of the phenomenon and High Voltage was, therefore, under a duty to give adequate warning of the attendant danger. The trial court then succinctly stated the appellant's contention to the effect that it was under no duty to warn the appellees of the particular danger because as scientists they knew or should have known of it. Moreover, if they did not know, they had been given adequate warning of the particular hazard, and entry into the chamber under the prevailing circumstances was contributorily negligent.

The trial court then proceeded to state the applicable law of the case to the effect that as the supplier of a dangerous instrumentality the appellant was under a legal duty to warn prospective users of dangers which it knew or should know, and that such warning should be commensurate with the degree of danger involved, i. e. the warning must be directed to the specific danger and sufficient to cause a reasonable man acting under similar circumstances with the same knowledge and background to know the potential danger involved in the exercise of reasonable care.

The appellant makes no objection to the statement of the issues or the law of the case as stated in the trial court's instructions. It takes the position, however, that the trial court should have followed the law and the ruling in Marker v. Universal Oil Products Co., 10 Cir., 250 F.2d 603, and directed a verdict on the grounds that the evidence conclusively shows that the peculiar danger causing the injury was equally within the knowledge of the parties and the appellant was, therefore, under no duty to warn or inform. Alternatively, it contends that as a matter of law its legal duty was fulfilled by complete and adequate instructions to any user of the accelerator and that the harm in this case resulted from an unanticipated misuse by an adequately informed user.

The directed verdict in Marker was sustained on the conclusiveness of the proof that the dangerous condition was equally within the technical knowledge of both parties and that the harm, therefore, resulted from an unanticipated misuse. If the appellee had equal knowledge of the danger involved, or if he was adequately informed of it, his subsequent entry into the chamber would constitute unanticipated misuse or contributory negligence, both barring recovery. See Marker v. Universal Oil Products Co., supra; Parkinson v. California Co., 10 Cir., 255 F.2d 265.

The court in our case gave no equal knowledge instruction, and the appellant does not complain of its failure to do so. But, if, as in Marker, the evidence conclusively shows equal technical knowledge of the danger, High Voltage was entitled to a directed verdict under applicable law. Unlike Marker, however, we do not think the proof in our case conclusively shows equal technical knowledge of the dark current phenomenon which admittedly caused the danger and consequent harm.

We, of course, judge the critical question of equal knowledge or adequate notice in the context of an instrumentality specially designed for experimental use by highly skilled operators and physicists. In this environment it is suggested that while the users of this particular instrument, including these appellees, may not have actually known of the dark current phenomenon in accelerators like this one, it was within the realm of their technical or scientific knowledge, and they should have known it could occur under prevailing conditions, i. e. self-charge at high voltage.

True, as scientists the appellees or those with similar knowledge may have known of the scientific principle of dark current phenomenon, but the evidence does not conclusively show that appellees or anyone with similar scientific or technical knowledge knew or had reason to believe that this accelerator might produce the dark current phenomenon under prevailing conditions. There was some evidence that the phenomenon in accelerators of this type was not generally known among physicists; that a paper had been written on the subject but had been read to a very small group and had not received wide circulation. The Director of Physical Research at Sandia, who was completely familiar with accelerators, testified that he was aware of the principle of dark current phenomenon, but that he was not aware of the scientific fact that it could occur in this particular accelerator.² Appellee Pierce testified he did not know about it; the operator denied he knew of it; another scientist who had been similarly injured testified that he did not know of it or of anyone who did. The issue of equal scientific knowledge was well within the realm of fact.

Alternatively, High Voltage cites seven specific instances of unanticipated gross misuse of the accelerator based upon adequate notice, any one of which would bar recovery. Five of the cited instances are based upon failure to heed specific warnings contained in the manual of instructions accompanying delivery of the accelerator.³ There was conflicting proof concerning the meaning and significance of four of the warnings in the instruction manual, and the jury was correctly instructed that "* * * any ambiguity in the language of a warning furnished in connection with a product such as the machine in question * * * must be construed against the manufacturer who selected the words used."

The fifth asserted warning contained in the manual under the heading "Radiation Hazard" stated that "The output from the high voltage accelerator tube of this apparatus can produce radiation effects with serious and possibly fatal consequences to personnel. To minimize radiation hazards, adequate radiation protection and monitoring equipment must be provided before this equipment is operated. Frequent checks are essential." A similar warning was contained in the pre-installation instructions and stated "(6) Radiation Detection Devices Required". Two different devices were specified for detection and metering of radiation, i. e., a hand meter and a remote meter. Similar instructions were also given in a letter promulgated by the Health Physics Section of Sandia in consultation with its Physical Research Section. The effect of all these instructions was to require the installation of a remote monitoring system whereby a detector was installed inside the target room with a count-rate meter in the console room on the outside. This monitor was supposed to enable anyone at the console to determine and measure any radiation in the target room. The remote meter was installed but was inoperative on the date of the...