Jacobson v. Colorado Fuel and Iron Corporation

• Decision Date: 26 March 1969
• Docket Number: No. 22322.,22322.
• Parties: Mildred J. JACOBSON, Basil D. Jacobson, by Mildred J. Jacobson, his next friend, and Priscilla J. Jacobson, by Mildred J. Jacobson, her next friend, Appellants, v. COLORADO FUEL AND IRON CORPORATION, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

409 F.2d 1263 (1969)

Mildred J. JACOBSON, Basil D. Jacobson, by Mildred J. Jacobson, his next friend, and Priscilla J. Jacobson, by Mildred J. Jacobson, her next friend, Appellants, v. COLORADO FUEL AND IRON CORPORATION, a corporation, Appellee.

No. 22322.

United States Court of Appeals Ninth Circuit.

March 26, 1969.

Cresap S. McCracken (argued), and Douglas C. Allen (argued), of Church, Harris, Johnson & Williams, Great Falls, Mont., for appellants.

Joseph R. Marra (argued), of Angland & Marra, Great Falls, Mont., for appellee.

Before KOELSCH and HUFSTEDLER, Circuit Judges, and HAUK,^* District Judge.

HAUK, District Judge:

This appeal arises in a wrongful death action based upon claimed "products liability" of a manufacturer-supplier of steel strand which was being used in a concrete prestressing operation by decedent's employer, the purchaser of the strand, when it snapped and caused the death of the decedent who was foreman of the project.

The District Court, with jurisdiction by reason of diversity of citizenship and amount in controversy (28 U.S.C. § 1332 (a) (1), (c)),¹ tried the case without a jury, and with detailed findings of fact and conclusions of law granted judgment for defendant (appellee herein), holding that plaintiffs (appellants herein) upon the evidence adduced and the law governing the case had failed to sustain their burden of proof. We have jurisdiction under 28 U.S.C. § 1291,² timely and appropriate notice of appeal having been duly given and filed.

The relevant facts are not in dispute but we recite them here at the outset to assist our consideration of the contentions of the parties. Plaintiffs are the widow and children of DeRay Jacobson, employed at his decease as a foreman by United Prestress, Inc. Defendant, Colorado Fuel and Iron Corporation (hereinafter referred to as CF&I), manufactured a type of steel strand, 7/16" in diameter and designated 270K, which was being used by United Prestress, Inc., in two ways: (1) as horizontal reinforcing tendons, and (2) as vertical hold-down cables. The former method of use was that for which the strand was primarily designed and sold; whereas the latter use was designed by the technicians working for decedent's employer. On the day in question 22 strands of this type 270K wire product were being used as horizontal tendons, and 4 of these strands were being used as vertical hold-down cables in the manufacture of prestressed concrete items. Two of these 4 hold-down cables broke under very heavy stress during the prestressing operation, and as a result DeRay Jacobson received the injuries from which he died.

At the time of the death of plaintiffs' decedent, United Prestress was in the process of manufacturing two 90-foot prestressed single T roof beams. The prestressing of these concrete members involved the pouring of the concrete around the 22 horizontal tendon strands which had been stretched to a calculated tension. The casting bed, 230 feet long and divided into two equal sections, was being used as a mold for fabricating the two 90-foot single Ts with three hold-up points, one at the dead end where the strands were initially securely anchored, one in the middle through which the strands were passed, and one at the live end where they were again anchored. At the time of the accident, the 22 horizontal tendon strands had been anchored at the dead end, threaded through the middle hold-up point, and anchored at the live end. These strands were placed at precalculated levels in the casting bed at varying elevations from the floor of the bed. The strands were then tensioned by horizontal stretching, accomplished by moving the live end a predetermined distance, and were thereupon deflected downward another predetermined distance by the use of a hydraulic hold-down device.

As the process progressed, the 22 horizontal tendon strands were being depressed to points near the floor of the bed at two hold-down places in each of the 90-foot Ts. At the start of this "harping" process the horizontal tendons were stretched longitudinally through the length of the casting bed; each pair of longitudinal strands bore a different amount of tension than every other pair, depending upon its relative position and distance from the floor of the casting bed. It was necessary to apply a vertical force to each pair of strands at two points in each T in order to depress all the strands to points close to and approximately the same distance from the floor of the casting bed. The vertical force was supplied by two hydraulic rams which were operated from the top of the casting bed. The rams were intended to be operated together so that at any given time the points at which the strands were being depressed by each ram would be the same distance from the floor of the casting bed. Each ram had a five-inch stroke so that after the strands were depressed five inches it was necessary to hold the strands in position while the piston of the ram was pulled back preparatory to a new thrust.

Part of the hold-down device consisted of a saddle, an inverted "U" made of steel plate which gathered the horizontal tendons together. At each of the four hold-down points, a vertical hold-down cable was anchored to the beam plate beneath the floor of the casting bed by means of a Supreme Chuck (a standard wedge grip), and was then threaded through the floor of the form, through the saddle, through a steel spacer box open on one side, through another Supreme Chuck, out through the top of the box, through the ram and finally through another Supreme Chuck. The Supreme Chucks were so designed and positioned that as the tension on the hold-down cable increased, the grip of the Supreme Chuck on top of the ram and the grip of the Supreme Chuck beneath the floor of the form were both increased. But when the tension on the hold-down cable was released, the grip of the Supreme Chuck atop the hydraulic ram was also released. Thus, the Supreme Chuck on top of the ram held the ram in a fixed position on the hold-down cable as the piston of the hydraulic ram was being extended; and the Supreme Chuck in the steel box held the saddle in place when the pressure of the ram was removed.

On the day in question, this process had been completed in one of the Ts and the strands had been locked at the two hold-down points in that particular T. The crew was in the process of exerting vertical force on the other hold-down cable at the remaining two hold-down points in the second T, and the saddles were within an inch or two of the floor of the casting bed when the workmen heard a noise. The rams were turned off and then started again. Another noise was heard. When each of the noises occurred the hold-down devices and the two hold-down cables jumped a little bit. The witnesses could not tell from the noise or movement what had happened in the casting bed. The decedent foreman was called to the scene and informed of the situation. He sent a man to inspect under the casting bed. When this inspection revealed nothing, the decedent ordered the rams to be started again. The rams were turned on briefly — nothing happened; but when they were started again, the two hold-down cables snapped, one right after the other. As a result the tension on the 22 horizontal tendon strands was released and the decedent was hit by some of the flying iron and steel, receiving the injuries from which he died.

Plaintiffs' contentions at the trial, reasserted here on appeal, are basically two:

(1) That defendant CF&I breached express and implied warranties; and

(2) That defendant CF&I is strictly liable in tort for failure to warn of dangers in a nondefective but potentially harmful product.

The other contentions of the plaintiffs made upon this appeal are essentially part of and in support of these two basic contentions, or, like the original contention of negligent manufacture, have been abandoned by the plaintiffs on appeal.

Before taking up these two contentions and disposing of them, we note that the District Court, after complete and thorough litigation of the issues, both factual and legal, made its findings in favor of the defendant and against the plaintiffs, analyzing these contentions and finding them without merit. Bound as we are by Rule 52(a) of the Federal Rules of Civil Procedure³ and the leading cases both in this Circuit and the Supreme Court,⁴ we, too, find these contentions are without merit.

Giving due regard, as we must, to the duty of the trial court to judge the "credibility of the witnesses" and obedient to the mandate that "findings of fact shall not be set aside unless clearly erroneous" we here, as in Lundgren v. Freeman, 307 F.2d 104, 113 (9th Cir. 1962), "* * * may not substitute our judgment if conflicting inferences may be drawn from the established facts by reasonable men, and the inferences drawn by the trial court are those which could have been drawn by reasonable men."

Nor can we second-guess the trial court or hold a trial de novo although we may and do review the trial judge's findings of fact to see that justice has been done. Lundgren v. Freeman, supra, at p. 114. Our review convinces us here that the evidence adequately and beyond question supports the findings of fact of the District Court, and requires that we affirm the judgment.⁵

We now proceed to consider the two basic contentions of plaintiffs on this appeal.

I DEFENDANT CF&I DID NOT BREACH ANY EXPRESS OR IMPLIED WARRANTY

Defendant, in the brochure on Type 270K strand, CF&I Bulletin No. P.C. 955, which was furnished to the trade, represented and in effect warranted that its 7/16" diameter 270K strand had a minimum ultimate strength of 31,000 pounds.⁶ Plaintiffs contend that this meant that the 270K strand should withstand 31,000 pounds of tension during the prestressing procedure. However, this contention is not supported by the evidence. Jack Janney, a consulting structural engineer, called as an expert witness for the...