McCollum v. Grove Mfg. Co., 8118SC966

• Decision Date: 20 July 1982
• Docket Number: No. 8118SC966,8118SC966
• Citation: 293 S.E.2d 632,58 N.C.App. 283
• Court: North Carolina Court of Appeals
• Parties: Guster McCOLLUM v. GROVE MANUFACTURING COMPANY.

Page 632

293 S.E.2d 632

58 N.C.App. 283

Guster McCOLLUM v. GROVE MANUFACTURING COMPANY.

No. 8118SC966.

Court of Appeals of North Carolina.

July 20, 1982.

Stanley E. Speckhard and Donald K. Speckhard, Greensboro, for plaintiff-appellant.

Bateman, Wishart, Norris, Henninger & Pittman by Robert J. Wishart, Burlington, for defendant-appellee.

BECTON, Judge.

I FACTS AND PROCEDURAL HISTORY

The parties stipulated that the plaintiff was struck by a crane on 15 June 1977 while working for Carolina Cast Stone Company, Inc. (Carolina Cast Stone); that the crane had been designed and manufactured by the defendant, Grove Manufacturing Company, in June 1975 and had subsequently been sold to Carolina Cast Stone; and that the crane was in substantially the same condition at the time of the accident as it had been when it left the defendant's possession.

Plaintiff's evidence tended to show that Carolina Cast Stone manufactured heavy pre-cast stones for the building industry, that these stones were stored in vertical positions leaning on A-frames in the company yard, and that cranes were used to move the stones about. The boom of the crane manufactured by defendant was positioned in front of the crane operator and to his right, resulting in a blind spot to the operator. The plaintiff was in the operator's blind spot when struck. At the time of the accident, Charles Mattison was operating the crane, and plaintiff's job was to connect the cable on the boom of the crane to the stones to be moved. Charles Cagle, who was then yard supervisor for Carolina Cast Stone, was standing to the crane operator's left.

Cagle testified that "as the crane approached, [plaintiff] got into a position that disturbed me a bit, and I yelled to [plaintiff] to move but it was too late and he was pinned between the stone and the crane." According to Cagle, the crane operator told Cagle that he had heard Cagle call to the plaintiff and had reacted by hitting both the accelerator and the brakes at the same time. Cagle stated further:

We customarily used a signal man when engaged in close work. I don't believe the work we were engaged in at the time of the accident could be described as close work. There was no signal man at that time.... I was not directing Charlie Mattison, the crane's operator, immediately prior to the accident.

Mattison testified differently. He stated that he was responding to a signal from Cagle as he approached the stone panel. He also testified that the plaintiff came in front of the crane in his blind spot and that he did not see plaintiff. Mattison denied telling Cagle that he had panicked or that he had hit both the accelerator and the brakes at the same time. The crane was on a large concrete pad. Mattison testified, "The right front wheel slipped off of [the concrete] and that's when it hit the panel and that's where I saw [plaintiff]."

Plaintiff testified that the crane stopped and was stationary for a few minutes before he went in front of it, and that "before I knew anything, the crane was on me."

Phillip Joseph Bisesi, an expert in mechanical engineering, testified that the boom was in the center of the crane and that the cab was behind it to the left of center, resulting in an obstruction to the operator's vision across a 25 ? angle. He indicated that the front bumper of the crane was 95 inches across and that the operator's vision was obstructed across 60 At the close of plaintiff's evidence, the defendant moved for a directed verdict, and the motion was allowed. The plaintiff's motion for a new trial was denied, and plaintiff appeals.

inches of the bumper, assuming no allowance for any change of position of the operator. Bisesi testified that a curved mirror placed on the front of the crane would enable the operator to see in front of the entire bumper.

II ANALYSIS

For the reasons that follow, the trial court was correct in granting defendant's motion for a directed verdict and in denying plaintiff's motion for a new trial.

"A motion by a defendant for a directed verdict under G.S. 1A-1, Rule 50(a) tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff." Manganello v. Permastone, Inc., 291 N.C. 666, 670, 231 S.E.2d 678, 680 (1977). On such a motion, the court must consider the evidence in the light most favorable to the plaintiff, taking all evidence which tends to support plaintiff's position as true, resolving all evidentiary conflicts in favor of the plaintiff, and giving the plaintiff the benefit of all inferences reasonably to be drawn in his favor. Daughtry v. Turnage, 295 N.C. 543, 246 S.E.2d 788 (1978). All evidence admitted, whether competent or not, must be given full probative force. Beal v. Supply Co., 36 N.C.App. 505, 244 S.E.2d 463 (1978). The testimony of the plaintiff's witnesses must be accepted at face value. Rayfield v. Clark, 283 N.C. 362, 196 S.E.2d 197 (1973).

(1) The Negligence Claim

The essential elements of an action for products liability based upon negligence include "(1) evidence of a standard of care owed by the reasonably prudent person in similar circumstances; (2) breach of that standard of care; (3) injury caused directly or proximately by the breach, and; (4) loss because of the injury." City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 656, 268 S.E.2d 190, 194 (1980).

As to the standard of care, a manufacturer is under a duty to those who use his product to exercise that degree of care in its design and manufacture that a reasonably prudent man would use in similar circumstances. Corprew v. Chemical Corp., 271 N.C. 485, 157 S.E.2d 98 (1967); Gwyn v. Motors, Inc., 252 N.C. 123, 113 S.E.2d 302 (1960). The manufacturer of a machine which is dangerous because of the way in which it functions, and patently so, owes to those who use it a duty merely to make it free from latent defects and concealed dangers. In a case against such a manufacturer, the plaintiff must prove the existence of a latent defect or of a danger not known to the plaintiff or other users. Tyson v. Manufacturing Co., 249 N.C. 557, 107 S.E.2d 170 (1959); Kientz v. Carlton, 245 N.C. 236, 96 S.E.2d 14 (1957); Hamel v. Wire Corp., 12 N.C.App. 199, 182 S.E.2d 839, cert. denied, 279 N.C. 511, 183 S.E.2d 687 (1971). Liability may also be imposed upon a manufacturer who sells a product that is inherently dangerous. Wyatt v. Equipment Co., 253 N.C. 355, 117 S.E.2d 21 (1960); Lemon v. Lumber Co., 251 N.C. 675, 111 S.E.2d 868 (1960); Davis v. Siloo Inc., 47 N.C.App. 237, 267 S.E.2d 354, disc. review denied, 301 N.C. 234, 283 S.E.2d 131 (1980). We conclude that the plaintiff's evidence herein failed to show any breach of the standard of care.

a) Restricted Visibility

Plaintiff first alleges negligence in the restricted visibility afforded the operator by the design of the crane. Initially, we note that the evidence tended to show that some restricted visibility is inevitable. Cagle testified: "All cranes have a visibility problem." The plaintiff's expert witness, Phillip Bisesi, testified that the operator's forward visibility could be improved by positioning the boom of the crane behind the operator, but that this would create a visibility problem to the rear. Assuming, arguendo, that the positioning of the boom of the crane herein may be held a defect, plaintiff's evidence tended to show that the resulting restricted visibility was a condition known to all people involved in the use of the crane. Plaintiff himself testified as follows:

To some point I knew that the crane had a blind spot.... Part of my job as hookup man was to know where the crane was.... I guess you would say that it was part of my job to stay out of the way of the crane if it was going to hurt me. I knew there were times when the crane operator couldn't see me but I could see the crane.

Although plaintiff testified that he did not know that he was in the operator's blind spot at the time of the accident, the important point is that he did know of the restricted visibility of the crane operator. Thus, there is no evidence of a latent defect or of a concealed or unknown danger in the design of the crane.

b) Lack of Warning Device

Plaintiff next alleges negligence in defendant's failure to equip the crane with warning devices. He offered evidence that the crane had no bells or lights to warn those nearby of its forward movement. Bisesi testified that the crane operator's visibility could have been improved by placing a mirror on the front of the crane.

Under our case law, a manufacturer has no duty to equip his product with safety devices to protect against defects and dangers that are obvious. We examine the controlling cases. The plaintiff in Tyson v. Manufacturing Co. was looping tobacco on a tobacco harvester. The harvester lurched, and the plaintiff lost her balance and caught her hand between a sprocket and conveyor chain. Plaintiff charged the manufacturer of the harvester with negligence in that the sprockets were inadequately guarded. Our Supreme Court affirmed a judgment of nonsuit in favor of the manufacturer. It wrote:

In cases dealing with a manufacturer's liability for injuries to remote users, the courts have always stressed the duty of guarding against hidden defects and of giving notice of concealed dangers. [Citations omitted.] As was said in Lane v. City of Lewiston, 91 Me. 292, 39 A. 999, "no one needs notice of what he already knows."

Plaintiff was experienced in looping tobacco on a tobacco harvester, and had been working on the tobacco harvester on which she was injured most of the summer in 1955, when tobacco was being pulled. There is no evidence of negligence in the design or construction of the machine. Entirely lacking is the slightest evidence that the sprockets and conveyor chain on the platform of the tobacco harvester had a latent defect or a danger concealed from plaintiff, or that they were in operation inherently dangerous to her....