Martin v. Unit Rig & Equipment Co., Inc., 81-2207
| Decision Date | 25 August 1983 |
| Docket Number | No. 81-2207,81-2207 |
| Parties | Grover Sterling MARTIN and Cleo Alean Martin, Plaintiffs-Appellants, v. UNIT RIG & EQUIPMENT COMPANY, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Bruce P. Moore, Sante Fe, N.M., for plaintiffs-appellants.
Kenneth J. Ferguson, of Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N.M., for defendant-appellee.
Before HOLLOWAY, LOGAN, and TIMBERS, * Circuit Judges.
Plaintiffs Grover Sterling Martin and Cleo Alean Martin 1 appeal from a judgment entered in the District of New Mexico, Juan Burciaga, District Judge, granting the motion of defendant Unit Rig Equipment Company, Inc. for a directed verdict at the close of plaintiff's evidence during the jury trial of this diversity products liability action brought to recover damages for personal injuries claimed to have been sustained by plaintiff as the result of allegedly defective hoisting pins intended to secure in an upright position the bed of a truck driven by plaintiff and manufactured and sold by defendant.
The issue on appeal is whether, in light of the evidence adduced during the presentation of plaintiff's case, the district court erred in granting defendant's motion for a directed verdict. We hold that it did. We vacate the judgment and remand for a new trial.
On the morning of April 24, 1980, plaintiff, an employee of the Phelps Dodge Corporation (Phelps Dodge), was driving a large Lectra-Haul truck (Truck No. 201) in the normal course of his work duties. The truck was designed specifically for the open pit mining industry. That morning, plaintiff was hauling waste ore material from a mine to a designated dump site in order to fill an old mine shaft. Plaintiff was an experienced driver, having driven this type of truck with a capacity of 170 tons continuously since they were first purchased from defendant by Phelps Dodge in 1978. The job required special skill and was replete with dangers. For example, at the dumpsite to which plaintiff had driven his truck on the day of the accident, all that separated the truck from a precipitous drop was a "berm", which was an elevated bank of ground approximately 18 inches high designed to keep the trucks from going over the brink into the dumpsite. To reduce the danger of trucks going into the dumpsite, the area leading up to the berm was slightly inclined, thus requiring a truck to back uphill in order to dump its load. Upon arrival at the dumpsite and before backing uphill to the berm, the truck turns in a clockwise direction, as plaintiff did on the day of the accident.
On that morning, plaintiff had made several trips from the mine to the dumpsite without mishap. On the fifth or sixth trip however, when he attempted to raise the bed of the truck preparatory to dumping, the bed of the truck did not move. He observed that the lefthand side of the truck was lower than its righthand side, apparently due to the soft surface before reaching the berm at the dumpsite. He then moved the truck forward approximately 30 feet until the level of the sides of the truck was equal. He checked his dumping system and ascertained that it was in working order. He then backed the truck again up to the berm and was ready to begin the dumping process.
According to plaintiff, he did not raise the bed of the truck before backing up to the berm. There was contrary evidence, however, that plaintiff either raised the bed of his truck at the time he checked his dumping system or that he subsequently backed up his truck with the bed partially raised. Defendant's counsel at trial referred on cross-examination of plaintiff to an internal Phelps Dodge report purportedly based on statements made by plaintiff to a mine foreman shortly after the accident which indicated that plaintiff backed up his truck with the bed raised 12 inches. Moreover, a report made by defendant regarding the accident indicated that plaintiff backed up his truck with the bed raised 18 inches. These conflicting versions of what preceded the accident, in view of our remand for a new trial, of course must be resolved by the jury. Their resolution is critical, for if plaintiff backed up the truck with the bed raised--contrary to instructions he is said to have received on the operation of the truck--that fact would have an important bearing on his right to recover under the New Mexico law of products liability. Skyhook Corporation v. Jasper, 90 N.M. 143, 560 P.2d 934 (1977). 2
After backing up his truck to the berm, plaintiff began the actual dumping of the waste material. According to plaintiff, when the bed was raised approximately 3 1/2 feet, the two hoisting pins which support the two hydraulic cylinders that raised the bed broke. The bed collapsed onto the frame of the truck, as a result of which plaintiff, who was in the cab of the truck at the time, sustained injuries. At the time of the accident, plaintiff was the only person present at the dumpsite, although other trucks had been participating in the dumping process that morning.
Aside from the deposition testimony of a treating physician, Dr. Barry King, plaintiff's case consisted of the testimony of two witnesses: Dr. Derek Swinson, an expert witness on physics, and plaintiff. We shall summarize their testimony briefly to the extent relevant to the issues on this appeal.
Although Dr. Swinson, a professor of physics at the University of New Mexico, did not make a metallurgical analysis of the pins in question 3 and was unfamiliar with the terrain where the accident occurred, 4 he had before him the following documents which provided the basis for his testimony: two Phelps Dodge accident reports involving other similar large trucks whose beds had collapsed; two accident reports concerning the instant accident--the Phelps Dodge report and defendant's report; a diagram of the hydraulic cylinder pin; replacement equipment records for the Phelps Dodge trucks whose beds had collapsed; defendant's operator's manual and mechanical manual for the 170 ton load truck; code of safety practice for heavy truck operations adopted by Phelps Dodge; minutes of a unit safety meeting held by Phelps Dodge; defendant's blueprints relating to the truck in question; and depositions of plaintiff and three other individuals.
Swinson testified that, based on his examination of the documents submitted to him, the most probable cause of the accident was that the pins were insufficiently strong to withstand the force imposed on them at the time of the accident. He identified two possible causes of the accident: either the hydraulic cylinders that raised the bed had failed or the pins that supported the hydraulic cylinders gave way. Of these two alternatives, he dismissed the former because only one of the hydraulic cylinders was replaced after the accident. He concluded that, whether the truck was stationary at the time of the accident or whether it was being backed up, the "major cause" of the accident was that the pins were insufficiently strong and therefore had been defectively designed. 5
On cross-examination, counsel for defendant explored the implications of an alternative theory of the accident: that plaintiff had disregarded the standard instructions that the truck should not be driven with the bed raised and that plaintiff's failure to follow those instructions was the proximate cause of the accident. Swinson did not express an opinion as to whether plaintiff's or defendant's theory of the accident was the more likely. He testified that the pins could have failed under either theory.
Counsel for defendant sought to impeach Swinson's trial testimony on the basis of his prior deposition testimony. Swinson had been asked on his deposition whether he had formed an opinion as to whether it was more likely that the accident occurred as a result of the failure of the pins or the failure of the hydraulic system. He responded, "No, I don't." At trial, however, he sought to explain his apparently prior inconsistent statement as follows: "Essentially, what I am saying there, that is, I cannot assign numerical probabilities to one or the other." In short, at trial Swinson adhered to his opinion that the most probable cause of the accident was the insufficiently strong pins.
In addition to plaintiff's testimony referred to above, he also testified to the following matters among others. He stated that he was aware of the caution against backing up the truck with the bed raised; but he denied that he had disregarded those instructions on the morning of the accident. He also testified that, although the truck he was driving that morning (Truck No. 201) was not his usual truck, he had driven it on several occasions, and, so far as he knew, it was in substantially the same condition as when originally received by Phelps Dodge.
On cross-examination, plaintiff denied that he had talked to the mine foreman who had prepared the Phelps Dodge report regarding the accident, including plaintiff's admission that he had backed up his truck with the bed raised. On re-direct, he stated that the foreman may have visited him once while he was recovering in the hospital. In support of his assertion that he had not stated previously that he had moved the truck with the bed raised, plaintiff testified that the truck's air brakes were set at the time of the accident. Plaintiff further testified that he previously had driven a truck whose bed collapsed one foot, but this had not caused any physical injuries.
As stated above, at the close of plaintiff's evidence, defendant moved for a directed verdict on the ground that plaintiff had failed to prove a prima facie case of products liability. The court granted the motion on the ground that plaintiff had failed to present any evidence of causation. With respect to Swinson's...
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