Krysiak v. Acme Wire Company, Civ. A. No. 33622.

• Decision Date: 13 January 1959
• Docket Number: Civ. A. No. 33622.
• Citation: 169 F. Supp. 576
• Parties: Louise KRYSIAK, Complainant, v. ACME WIRE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Ohio

169 F. Supp. 576

Louise KRYSIAK, Complainant, v. ACME WIRE COMPANY, Defendant.

Civ. A. No. 33622.

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

January 13, 1959.

Harrison, Spangenberg & Hull, Cleveland, Ohio, Oliver W. Hasenflue, Cleveland, Ohio, of counsel, for plaintiff.

Thompson, Hine & Flory, Cleveland, Ohio, Arthur F. Zalud and Wm. G. Batchelder, Jr., Cleveland, Ohio, of counsel, for defendant.

McNAMEE, District Judge.

Plaintiff has filed a motion for a new trial complaining of the action of the Court in entering judgment for defendant at the conclusion of plaintiff's evidence. It is plaintiff's position that the evidence offered on her behalf presented a case that ought to have been submitted to the jury either under the doctrine of res ipsa loquitur or on the theory that plaintiff had made out a prima facie case of circumstantial evidence of negligence.

Briefly stated, the evidence, construed most favorably to the plaintiff, shows the following facts:

Plaintiff is a resident of Cleveland, Ohio, and was employed as a press operator for the Telectron Company which, at the time in question, was engaged in the manufacture of deflection yokes at Cleveland, Ohio. Defendant, Acme Wire Company, is a foreign corporation with its principal place of business located at New Haven, Connecticut. The function of a deflection yoke is to transcribe beams of electrons across a television screen. The yokes are made of small strands of wire which are wound in coils, heated and formed into appropriate shapes. The wire used in the coils has an adhesive coating and there are two known methods by which the wire may be "softened" and "bonded" into the desired forms. The first method is by the use of solvents, the second by the application of heat. Until 1952 or 1953 Telectron used the solvent method. Later it changed to the heating process and, after using that method for awhile, it increased the intensity of the heat in order to speed up production. In the process of manufacturing yokes, coils of wire are placed on a conveyor which moves rapidly under infra red ray light bulbs capable of inducing intense heat. In the center of the conveyor and projecting upward from it is a blower which, as explained by the Production Manager of Telectron, is used to "evacuate" the heat and the fumes caused by the application of heat to the wire. The conveyor was enclosed except for openings at each end and was approximately 15 inches high and about a foot wide. The outer surface of the infra ray bulbs was within 6 to 8 inches of the surfaces on which the wire coils were carried. The temperature in the conveyor was determined on the basis of specifications and engineering data supplied by Wire companies other than defendant and was as high as 400 to 600 degrees Fahrenheit. Telectron purchased its wire from the Essex Manufacturing Company, the Phelps-Dodge Company and others. It was shown that no matter from what source the wire was procured the heating process usually produced some fumes but never before the time in question had the fumes injuriously affected the health of those working at or near the conveyor.

Early in December 1955 Telectron received a shipment of wire from defendant consisting of approximately 500 pounds of wire of the size used in the manufacture of deflection yokes. Whether this was the first shipment of such wire from Acme is not entirely clear, although the Production Manager of Telectron was unable to say positively that such wire had been received from Acme prior thereto. The wire was placed in the stockroom, where it remained until December 15, 1955, when it was used in the manufacture of the yokes. On the first day Acme wire was used there was a noticeably unpleasant pungent odor, which caused only slight discomfort to the employees of Telectron. On the second day of its use, however, the odor became stronger and caused serious discomfort and distress to the employees working at or near the conveyor. Women employees complained of "smarting" and "tearing" of the eyes—of nausea and of sickness generally. The odor was described as—"it just smelled terrible"— "it made you cough"—"your throat burned," etc. A witness said she had lost her voice as a result of the fumes. Many of the employees complained to their immediate superiors but were directed to continue working. Plaintiff was among those who complained and protested. In relating one conversation with her boss, Vickers, plaintiff testified she said: "Dave, this is making me sick—my eyes are burning. What should I do?" and that Vickers responded by saying "Keep running them through." The engineering staff and the Production Manager of Telectron were aware of the condition and the continuous and many protests from the workers but, as the Production Manager testified, "Frankly, we overlooked the protest for a few days * *." On cross-examination the Production Manager testified:

"Q. Let me ask you if in your opinion the working conditions there were all right as far as people continuing to work in that atmosphere was concerned? A. I would say due to the circumstances that evolved certainly they were not, but at the time it was impossible to determine whether or not these were going to be effective in an injurious effect on anybody in the surrounding area."

The same condition prevailed throughout the five day work period of the week of December 15th, during which time the complaints and protests continued. Nothing was done to relieve or correct the situation except to order the windows opened and there was testimony that this afforded no relief, particularly when the wind was "blowing in." During the week of December 22nd plaintiff and other workers were compelled to continue working under the same conditions for one-half day during each of the first three days of that week, after which the plant closed down for the Christmas holiday.

Upon returning home on the evening of the eighth day of working under the above conditions plaintiff became ill and went to a hospital for an examination and treatment.

After January 1956 Telectron purchased additional wire from Acme but on February 23, 1956 it returned all of the wire purchased from the defendant and received credit therefor.

There is no evidence tending to show that before December 1955 Acme had knowledge of the heating method employed by Telectron in the manufacture of its yokes. Further facts will be referred to in the discussion.

It is at once apparent that the doctrine of res ipsa loquitur has no application. It is clear that the defendant had no control over the instrumentality that caused plaintiff's injuries. Telectron was at all times in...