Lewis v. Bucyrus-Erie, Inc.

• Citation: 622 S.W.2d 920
• Decision Date: 13 October 1981
• Docket Number: BUCYRUS-ERI,No. 62471,INC,62471
• Parties: Delbert LEWIS, et al., Appellants, v., Respondents.
• Court: United States State Supreme Court of Missouri

Page 920

622 S.W.2d 920

Delbert LEWIS, et al., Appellants, v. BUCYRUS-ERIE, INC., Respondents.

No. 62471.

Supreme Court of Missouri, En Banc.

Oct. 13, 1981.

Arthur J. Kase, Joseph A. Cambiano, Rubins, Kase & Rubins, Inc., Kansas City, for appellants.

Gordon N. Myerson, William M. Modrcin, Morris, Larson, King, Stamper & Bold, Kansas City, for respondent.

Stephen H. Ringkamp, Hullverson, Hullverson & Frank, Inc., Veryl L. Riddle, Thomas C. Walsh, St. Louis, Reed O. Gentry, Kansas City, John C. Milholland, Harrisonville, for amicus.

RENDLEN, Judge.

Delbert Lewis and Goldie, his wife, brought their action against Bucyrus-Erie (hereinafter B-E) manufacturer and against Sharp Enterprises (hereinafter Sharp) operator of a crane which toppled causing Delbert extensive personal injuries. Settling with Sharp for $290,000, plaintiffs continued against the manufacturer B-E as sole defendant on a theory of strict tort liability (MAI 25.04) for product defect. ¹ Following a defendant's verdict plaintiffs sought review in the Court of Appeals, Western District, where the judgment was affirmed on the basis of plaintiffs having failed to make a submissible case, but the Court of Appeals ordered the cause transferred that we might examine for conflict in their opinion with the decisional law announced in Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo.1969), and Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. Banc 1977). Art. V, § 10, Mo.Const.; Rule 83.01. However, considering the cause as though here on original appeal, Art. V, § 10, Mo.Const., we affirm the trial court's judgment without the necessity of reaching the theory of liability for design defect advanced by the Court of Appeals.

Plaintiffs contend the trial court erred in permitting: (1) testimony concerning the substance of O.S.H.A. regulations ² and (2) defense counsel's comments during closing argument, regarding: (a) plaintiffs' failure to call any manufacturer of load indicating devices, or the oiler of the crane lift, insinuating unfavorable testimony by such potential witnesses; (b) Delbert Lewis' awareness of the danger involved when he rode the lift; and (c) Sharp's ability as lessee to have installed a weight measuring device, implying that the capability of a distributor to cure a defect discharges the manufacturer from liability.

The crane in question was manufactured by B-E in 1969, and, at the time of the accident, July 17, 1972, was under lease by B-E to Sharp. It was a wheel mounted 110 Ton B-E transit model, equipped with four outriggers, extensions lowered to the ground during operation for stability. On the date of injury, the crane, fitted with a 160-foot boom, was employed to lift a steel sound cage onto two L-shaped arms, denominated bents, projecting inward from the top of Arrowhead Stadium in Kansas City. The crane had been used to install the bents two days earlier. During these maneuvers, the crane (with outriggers lowered) was positioned near the exterior wall of the Stadium, so the operator, unable to see the placement of the loads, was directed by hand signals from a worker atop the Stadium wall. The sound cage was lifted by the crane outside the Stadium, where two workers had boarded the load platform, and was swung over the Stadium wall to the top level of seats. There, three more workers, including Delbert Lewis, came aboard laden with the tools and materials for welding the cage to the bents cradle. The worker atop the Stadium signaled the crane to boom out and the operator attempted to hoist the cargo cage, workers and welding equipment toward its intended position on the bents. Suddenly, the crane tipped, causing the boom to strike the Stadium wall and collapse, flinging the men from the platform.

It is conceded the crane toppled from overload and asserting strict tort liability, plaintiffs maintain the want of a device to warn of overload and imminent danger of tipping constituted a design defect rendering the hoisting equipment unreasonably dangerous. Defendant B-E, on the other hand, contends the crane's boom angle indicator, utilized by an operator with information of the load's weight and the distance of the lift, assured a secure range of use. In this respect, B-E asserts the equipment was safe and the mishap's cause lay with Sharp. Further, the crane was put to a use, i. e. hoisting personnel, not reasonably anticipated.

The crane operator was James Lenhart, a Sharp employee, who received direction from another Sharp employee, job-site supervisor Haggard. To assure a safe lift, knowledge of the distance to the lift point and weight of the load was required. The crane operator had access to a chart inside the cab which, when supplied the weight and distance (radius) ³ of the lift, indicated the safe load limit. ⁴ On the day of the accident, Haggard advised Lenhart that the sound cage lift was for 5,000 pounds at a boom radius of 100 feet. According to the chart, at that distance, the crane would lift 10,400 pounds with the safety factor of 25% and 11,800 with a safety factor of 15%. A 5,000 pound lift by a 160 foot boom was too minimal a load to appear on the chart. In actuality, the sound cage components weighed 10,800 pounds, ⁵ a fact sales engineer John Creal (from the structural steel manufacturer of the sound cage) had brought to Haggard's attention. This weight also appeared on the shipment invoices available to Haggard, and though Lenhart knew the load was a critical factor in the safety of the lift, he made no independent inquiry to determine its weight. The official B-E manual for the 110T crane was a maintenance primer, showing no method for an operator to gauge the load's actual weight. In spite of all this Lenhart could have verified the safety by a test lift but he accepted Haggard's information as correct. Prior to the accident Lenhart had directed one of the crane crew members, an oiler, to watch the outriggers during the lift for signs of lightness, but he received no warning from the oiler of the eventual toppling of the crane.

At trial, B-E resolutely maintained that hoisting personnel was a misuse of the 110T crane, but Lenhart, though his view of the sound cage was obscured, assumed workers were riding the load. There was evidence B-E and other industry officials were aware of such practice by workers on job sites. However, other proof pointed to industrial and governmental standards condemning the practice as unsafe. Further, defense expert witnesses indicated that the anticipated use of equipment determines its safety design, hence, a crane intended to hoist personnel is fitted with a more elaborate safety system than one for material only.

Plaintiff Delbert Lewis had been an ironworker for 25 years and had worked around many cranes during this time, yet he had never seen one equipped with a load moment or load indicator device. The crane in question was no different from others he had observed, except perhaps larger, and he did not expect it to be so equipped. Lewis helped assemble the sound cage for placement on the bents and before the lift had estimated the load at approximately six tons. While he rode on the crane because "there wasn't no way to get up there but ride the load," he was aware an overload entailed the risk of tipping the crane which would require the operator to drop the load. Sufficient expert testimony, pro and con, was presented to the contention that the design was defective for want of a load measure device that the issue be submitted under the theory of strict tort liability enunciated in Keener v. Dayton Electric Mfg. Co., supra, and Blevins v. Cushman Motors, supra. Defendant B-E's tendered instructions, submitting the contributory fault of plaintiff Delbert Lewis, were refused. The jury rendered a verdict for defendant.

I.

Plaintiffs first charge trial court error in twice permitting testimony concerning O.S.H.A. regulations, as violative of the "best evidence rule" and improperly leading the jury to conclude that O.S.H.A. prescribed the appropriate standards of conduct. This complaint stems from statements read into evidence by defendant from the deposition of Clark Lauer, an employee of B-E, that O.S.H.A. regulations prohibited workers riding load cranes. Plaintiffs claim (1) the regulations were the best evidence of their contents and (2) that reference to O.S.H.A. was irrelevant because such regulations are not "controlling in a products liability case." Plaintiffs overlook the fact that reading this portion of Lauer's deposition was merely explanatory and retaliatory, rendering reference to O.S.H.A collateral and the "best evidence rule" inapplicable. Where a writing's contents are not directly in question, though they may bear on an issue in the case, secondary evidence may be used without accounting for the original document. Wilborn v. Williams, 555 S.W.2d 44, 45 (Mo.App.1977); F.C. Preuitt Construction Co., Inc. v. Doty, 536 S.W.2d 908, 914-15 (Mo.App.1976); Aviation Enterprises, Inc. v. Cline, 395 S.W.2d 306 (Mo.App.1965). During their case in chief, plaintiffs read as an admission, a portion of Lauer's deposition in which counsel had inquired whether a well-known rule existed governing workers riding load cranes. Lauer had responded, "Evidently not, because they do it." During trial defense counsel secured the court's permission to pursue this matter and read further from the deposition, Lauer's statement that he believed O.S.H.A. regulations cautioned against lifting personnel with such cranes. Hence, as plaintiffs introduced the subject, eliciting the fact of the rule's existence, they may not now be heard to complain of its relevancy and the want of an original writing, see, Fontenot v. Lloyds Casualty Insurer, 31 So.2d 290 (La.App.1947); First Nat. Bank of Payette, Idaho v. Miller, 48 Or. 587, 87 P. 892 (Or.1906), nor claim surprise. Finally, if error may be said to have occurred, we are unable to discern plaintiffs' harm,...