Lockett v. General Electric Company

• Decision Date: 29 April 1974
• Docket Number: Civ. A. No. 70-1994.
• Citation: 376 F. Supp. 1201
• Parties: Isiah LOCKETT v. GENERAL ELECTRIC COMPANY.
• Court: U.S. District Court — Eastern District of Pennsylvania

376 F. Supp. 1201

Isiah LOCKETT v. GENERAL ELECTRIC COMPANY.

Civ. A. No. 70-1994.

United States District Court, E. D. Pennsylvania.

April 29, 1974.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert A. Ebenstein, Fine, Staud, & Grossman, Philadelphia, Pa., for plaintiff.

James F. McMullan, Clark, Ladner, Fortenbaugh & Young, Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

BRODERICK, District Judge.

This matter comes before the Court on the motions of the defendant, General Electric Company (G.E.), for judgment notwithstanding the verdict or in the alternative for a new trial. This was a bifurcated trial. The jury first returned a verdict for the plaintiff, Isiah Lockett, on liability and then awarded damages in the sum of $66,000.00.

On November 10, 1968, the plaintiff, Isiah Lockett (Lockett), a laborer employed by Sun Shipbuilding & Dry Dock Company (Sun Ship), was assigned to clean debris from the engine room of a vessel which was being constructed by Sun Ship and which was later designated the SS American Lynx. The area where Lockett was working was in the lower engine room near the driveshaft. Mounted on the driveshaft was a split ring gear which drives two smaller pinion gears, one on either side of the driveshaft. The pinion gear on the right (starboard) side of the vessel drives an R.P.M. indicator, and the pinion gear on the left side (port-side) drives a "shaft stopped sensor." There was evidence that the split ring gear, the pinion gears, the R.P.M. indicator and the "shaft stopped sensor" were all supplied to Sun Ship by G.E. for assembly and installation in the vessel which Sun Ship was constructing.

During the morning hours of November 10, 1968, Lockett had been engaged in "blowing down" the debris with an air hose. This task was performed on the tank tops, which are below the decking or grating in the lower engine room. Some time after noon, approximately two hours prior to the accident, Lockett was told to stand on the deck in the lower engine room in the vicinity of the driveshaft and to pass buckets of debris from the tank tops to men working above him.

Some time between 3:30 P.M. and 3:45 P.M. Lockett stopped to clean his safety glasses. He was standing on the deck near the driveshaft and placed his left arm on one of the pinion gears. He was wearing "a pullover jacket with real wide, fluffy sleeves" tied at his wrists. (NT 2-19). Lockett's gang boss told him to tell the other laborers to complete the cleaning job before quitting time. When Lockett attempted to leave in order to carry out the gang boss's instructions, he became aware that his sleeve had become caught between one of the pinion gears and the split ring gear. At the time the driveshaft was "jacking", i. e., turning at a speed of one revolution every seven minutes for the purpose of cleaning the preservative from the main reduction gears. Lockett was unable to free himself from the gears, and before the driveshaft could be stopped he was pulled into the gears up to his shoulder, suffering injury to the muscles and nerves of the left upper arm and shoulder. Lockett testified that he was not aware, prior to the accident, that the driveshaft was turning. In normal operation the driveshaft turns at 120 revolutions per minute. Lockett stated that the accident occurred on the port side of the vessel, where the "shaft stopped sensor" was located. Another witness for the plaintiff, Bruce H. Johnson, testified that the driveshaft was turning in a clockwise direction when viewed from the stern of the vessel and that this meant that Lockett could not have been drawn into the gears on the port side but only on the starboard side of the vessel, where the R.P.M. indicator was located. Other evidence in the case demonstrated that Lockett was caught in the gears on the starboard side of the vessel and not in the gears on the port side. This contradiction is not fatal to Lockett's case. Guenther v. Armstrong Rubber Company, 406 F.2d 1315, 1317-1318 (3d Cir. 1969).

Although the final pretrial order stated that Lockett claimed liability against G.E. pursuant to sections 388, 389, 394 and 396 of the Restatement of Torts, Second (Restatement), at the trial Lockett's counsel limited his theory of liability specifically to sections 388 and 389 of the Restatement, and the case was submitted to the jury on these two theories.

G.E. contends that judgment notwithstanding the verdict should be granted because there was no competent evidence that G.E. furnished the gears involved in the accident. G.E. also contends that the evidence was insufficient to establish liability under section 388 or 389 of the Restatement. And finally, G.E. contends that Lockett was contributorily negligent as a matter of law.

G.E. claims that there was no competent evidence that it supplied the gears involved in the accident. G.E. bases its contention that there was no competent evidence that it supplied the gears involved in the accident on its allegation that the Court erred in permitting Lockett to introduce into evidence exhibits P-5, P-6 and P-11. The basis for G.E.'s opposition to exhibits P-5 and P-6, which identified G.E. as the party from whom Sun Ship intended to buy the R.P.M. indicator and the pinion gear for installation on the starboard side of the vessel is that these exhibits were never properly identified. G.E. also contends that no explanation was ever given as to when the handwritten notation contained on these exhibits which identified G.E. as the party from whom Sun Ship intended to buy the gears was made. These contentions are without merit. The parties stipulated that exhibits P-5 and P-6 were bills of materials prepared by Sun Ship in connection with the material used in the construction of the vessel. (N.T. 2-84). When called as a witness for Lockett, Bruce H. Johnson, the chief operating engineer for Sun Ship, testified that exhibits P-5 and P-6 were kept as part of the official business records of Sun Ship in the ordinary course of business (N.T. 2-86). He further testified that exhibits P-5 and P-6 specified the equipment which was shown in the photograph (P-4) of the starboard side of the driveshaft (N.T. 2-96).

Rule 43 of the Federal Rules of Civil Procedure provides, in pertinent part:

All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs . . .

The Federal shopbook rule, 28 U.S.C. § 1732(a) provides, in pertinent part:

In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.

All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility.

Since the parties stipulated that the exhibits were bills of material for equipment prepared by Sun Ship, and since it was testified that the said exhibits were made in the regular course of Sun Ship's business, the exhibits were admissible under the Federal shop book rule to show Sun Ship's intent to purchase the R.P.M. indicator and accompanying pinion gear from G.E. Even if exhibits P-5 and P-6 were inadmissible, however, any error was not prejudicial to G.E. because exhibit P-10, the purchase order from Sun Ship to G.E. for the R. P.M. indicator, and the accompanying pinion gear (N.T. 3-3, 3-14), was admitted into evidence with the express agreement of the defendant G.E. (N.T. 3-38). And as heretofore pointed out, the Chief Operating Engineer for Sun Ship identified the equipment specified in P-5 and P-6 as the same equipment installed on the ship.

G.E. also contends that the Court erred in admitting exhibit P-11 into evidence as a business record. Exhibit P-11 is a letter dated March 31, 1971 from the vice president of Sun Ship to its assistant treasurer in response to an inquiry concerning the accident. The letter indicates that the split ring gear which was mounted on the driveshaft, the "shaft stopped sensor" and accompanying pinion gear located on the port side of the vessel were also supplied by G.E. Any error in the admission of exhibit P-11 was not prejudicial to G.E., however, since careful scrutiny of exhibit P-3, a photograph of the "shaft stopped sensor" and the accompanying pinion gear, reveals the inscription "GENERAL ELECTRIC." Accordingly, there was sufficient evidence in the record for the jury to find, without resort to prejudice or guess, that G.E. supplied the split ring gear, the two pinion gears, the R.P.M. indicator and the "shaft stopped sensor."

G.E. also contends that the evidence was insufficient to establish liability under either section 388 or section 389 of the Restatement, because these sections are not applicable to a supplier of component parts to be assembled by another into a finished product where the component parts are not in themselves dangerous or defective. G.E. further contends that the gears became dangerous, if at all, only when they were assembled, installed and operated by Sun Ship in an unsafe condition.

Section 388 of the Restatement reads as follows:

Chattel Known to be Dangerous for Intended Use. One who supplies

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