Leistra v. BUCYRUS-ERIE COMPANY

• Decision Date: 20 July 1971
• Docket Number: No. 20227.,20227.
• Citation: 443 F.2d 157
• Parties: Donald E. LEISTRA, Appellant, v. BUCYRUS-ERIE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

443 F.2d 157 (1971)

Donald E. LEISTRA, Appellant, v. BUCYRUS-ERIE COMPANY, Appellee.

No. 20227.

United States Court of Appeals, Eighth Circuit.

May 25, 1971.

Rehearing Denied July 20, 1971.

Rehearing Denied July 20, 1971.

Daniel G. Dolan, Lathrop, Albracht & Dolan, Omaha, Neb., for appellant.

Joseph H. McGroarty, McGroarty & Welch, Omaha, Neb., for appellee.

Before MATTHES, Chief Judge, LAY, and BRIGHT, Circuit Judges.

Rehearing En Banc Denied July 20, 1971.

BRIGHT, Circuit Judge.

Donald Leistra, as plaintiff, brought this diversity action under Nebraska law to recover for injuries he sustained in an industrial accident. He attributed his injuries to negligence in the design of a large crawler-type crane, manufactured by Bucyrus-Erie Company, about which he worked as an employee of building contractor Peter Kiewit Sons Company of Omaha, Nebraska. A jury awarded Leistra $70,000 in damages, but the federal district court, Judge Robinson presiding, granted defendant Bucyrus-Erie judgment notwithstanding the verdict. Leistra brings this timely appeal. We agree with the district court's decision that Leistra, as a matter of law, established no proper basis for a claim against Bucyrus-Erie.

The facts surrounding the accident are not in dispute. Leistra served as an oiler or assistant to the operator of the fifty-ton load capacity Bucyrus-Erie 30B Series Three Supercrane. On April 22, 1966, the crane was being used to lift and transport freshly-made concrete from truck mixers to the top of a bridge under construction. The operator of the crane, Donald Cronkhite, after moving the machine from one location to another at the bridge site, discovered that a portion of the steel cable used to raise and lower the load had spilled out beyond the confines of its drum, the front drum, and had become wedged between the drum and an adjacent circular chain called the power-down chain. The power-down chain and its sprocket operate as a brake in controlling the downward movement of the load. Apparently, the movement of the crane caused the cable to unwind and jump over the drum flange. This, in turn, prevented the ball and hook at the end of the boom from being lowered to pick up another load.

The front drum and power-down unit are housed in a recessed compartment at the center-front of the cab and above the machinery deck. Though recessed, the unit is, nevertheless, unshielded at its exterior part. It is thus accessible to contact by a person located at or near this point. This site, at which the accident occurred, is illustrated in the following photograph and legend.

Operator Cronkhite called Leistra's attention to the wedged cable. Leistra climbed onto the machine and first attempted to free the cable by hand. When this effort failed, he tried to dislodge the cable by prying it with a crowbar. During these efforts, the master clutch which transfers power from the engine to the front drum was disengaged. When Leistra was unable to pry the cable free, Cronkhite advised plaintiff that he would assist him by moving the drum slightly back and forth. As Leistra continued his attempts to pry the cable from the chain, Cronkhite engaged the master clutch, rotating the drum twice back and forth. With this additional force, the power-down chain snapped and struck Leistra in the face, causing his injuries, including the loss of an eye.

Leistra brought suit against Bucyrus-Erie Company, claiming negligent design and manufacture of the crane in two respects: (1) failure to install a small metal shield, called a rope-guard, which allegedly permitted the cable to become wedged; and (2) failure to provide a shield over the power-down unit, which allegedly permitted the broken chain to hit plaintiff. The district court rejected the jury award on the basis that the plaintiff failed, as a matter of law, to establish that any such negligence on the part of Bucyrus-Erie caused his injuries. The court stated, in part:

The problem that is bothersome to the Court is the matter of causation, whether it be termed as a duty owed, proximate cause, foreseeability or a superseding intervening cause. Choosing first to speak mainly in terms of a superseding intervening cause, the Court believes, and so holds, that some conduct by either the plaintiff, other employees, or his employer, or a combination thereof, superseded any pre-existing negligence on the part of the defendant thereby relieving defendant of liability.

We shall likewise consider the matter of causation, mindful, however, that such consideration requires an examination of aspects of negligence, foreseeability and duty. See Schneider v. Chrysler Motors Corp., 401 F.2d 549, 557 (8th Cir. 1968); Restatement (Second) of Torts § 281, comment h. For a general discussion, see Annot., 100 A.L.R.2d 942 (1965). We, of course, construe the evidence most favorably for the plaintiff, who obtained the jury verdict. See Schneider, supra, 401 F.2d at 555; Chicago, Burlington & Quincy R.R. v. Beninger, 373 F.2d 854, 856 (8th Cir. 1967).

Although a rope-guard was not present on the crane at the time of the accident, no evidence of probative force suggests that its absence is chargeable to Bucyrus-Erie. Cf. Smith v. Hobart Manufacturing Co., 302 F.2d 570 (3d Cir. 1962); Tomicich v. Western-Knapp Engineering Co., 423 F.2d 410 (9th Cir. 1970). On the contrary, the manufacturer's records disclosed that such a guard, which was designed to prevent loose cable from spilling over the drum flange and contacting the power-down unit had been specially manufactured and installed on this particular crane prior to its leaving the factory. Moreover, plaintiff's expert witness testified that a rope-guard will not always prevent the cable from jumping over the flange of the drum. On the basis of this evidence, we cannot attribute the crane's malfunction, which was caused by entanglement of the cable and the power-down chain, to any negligent conduct on the part of Bucyrus-Erie. Plaintiff's claim for recovery must, therefore, rest solely upon the manufacturer's failure to provide a shield over the power-down unit.

Upon reviewing the evidence on this issue, we conclude, as did the district court, that any negligence on the part of Bucyrus-Erie did not operate as a legal cause of plaintiff's injuries. In so holding, we rely in part upon the rules of the Restatement of Torts, Second. The Nebraska Supreme Court has often cited the Restatement with approval in considering causation. See Landmesser v. Ahlberg, 184 Neb. 182, 166 N.W.2d 124, 127 (1969); Hoffman v. Jorgensen Awnings, Inc., 178 Neb. 261, 132 N.W.2d 867, 870 (1965). We also have utilized the Restatement in resolving similar issues arising under Nebraska law. See Schneider,supra, 401 F.2d at 558.

Section 281 of the Restatement of Torts, Second, sets forth the elements of a cause of action for negligence. The following comment and illustration from that section apply to the facts of this case:

f. Harm beyond the risk. Where the harm which in fact results is caused by the intervention of factors or forces which form no part of the recognizable risk involved in the actor\'s conduct, the actor is ordinarily not liable. This is subject, however, to the qualification that where the harm which has resulted was itself within the risk created, the fact that it has been brought about in a manner which was not to be expected, or by the intervention of forces which were not within the risk, does not necessarily prevent the actor\'s liability. * * *

Illustration:

3. A gives a loaded pistol to B, a boy of eight, to carry to C. In handing the pistol to C the boy drops it, injuring the bare foot of D, his comrade. The fall discharges the pistol, wounding C. A is subject to liability to C, but not to D.

Thus, for Bucyrus-Erie to be liable for plaintiff's injuries, the resulting harm must be within the recognizable risk, if any, created by Bucyrus-Erie. Appellant charges the manufacturer with failing "to guard the power-down chain." He fails to distinguish between shielding against the risk of human contact with the power-down unit and shielding against the risk of parts flying from the unit. Leistra sustained his injuries, not from contact with the moving power-down chain, but rather from being hit by a part of the chain when it broke.

The record is devoid of any evidence indicating that Bucyrus-Erie, in failing to provide a shield, created a risk of the power-down chain breaking, flying and hitting a workman. The plaintiff produced evidence that industry standards require the shielding of sprockets, drums and chains, as well as other moving parts of equipment. The basic purpose of machine guarding, according to the evidence, is to prevent injuries from the following sources: (1) direct contact with moving parts; (2) work in process; (3) mechanical failure; (4) electrical failure; and (5) human failure. Plaintiff's expert witness, a safety consultant, only briefly commented upon mechanical failure, as follows:

The next one is to guard against mechanical failure. Breaks. If it flies out, it is contained. It doesn\'t fly. A grinding wheel that breaks, a belt that breaks, it isn\'t allowed to fly out and strike people in the proximity or send fragments out like missiles.

While the expert opined generally that the crane in question did not comply with the standards of the industry since the power-down unit was "not guarded for contact * * * or from parts flying from it," he made no comment on the location of the power-down unit within the recessed compartment, the chain's strength, or the risk of it flying out of the compartment and striking a workman.

We note the following other evidence: (1) the power-down chain was designed to handle three times the normal operating load; (2) a basic rule of safety, here taught by plaintiff's employer, is that no repairs, adjustments or lubrication should be made while a machine is in operation; and (3) the power-down chain and...