McGowne v. Challenge-Cook Bros., Inc.

• Citation: 672 F.2d 652
• Decision Date: 10 March 1982
• Docket Number: No. 80-2052,CHALLENGE-COOK,80-2052
• Parties: 10 Fed. R. Evid. Serv. 135 Patricia Kay McGOWNE (Kozik), Jimmy DeWayne McGowne, Ronald Kevin McGowne, Appellants, v.BROS., INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 652

672 F.2d 652

10 Fed. R. Evid. Serv. 135

Patricia Kay McGOWNE (Kozik), Jimmy DeWayne McGowne, Ronald

Kevin McGowne, Appellants, v. CHALLENGE-COOK BROS., INC., Appellee.

No. 80-2052.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 13, 1981.

Decided March 10, 1982.

Elmer C. Oberhellmann, St. Louis, Mo., for appellant.

Kortenhof & Ely, Ben Ely, Jr., Victoria Spann Sheehan, St. Louis, Mo., for appellee.

Before HENLEY, Circuit Judge, ARNOLD, Circuit Judge, and BECKER, ^* Senior District Judge.

WILLIAM H. BECKER, Senior District Judge.

This is an appeal by Patricia Kay McGowne Kozik (Mrs. McGowne), who married Mr. Kozik after this action was filed, Jimmy DeWayne McGowne and Ronald Kevin McGowne. The appeal is construed by this Court, as later explained, to be an appeal from a final judgment entered by the District Court on a jury verdict against appellants in favor of appellee Challenge-Cook Bros., Inc. (Challenge-Cook). (Designated Record (R.) 13, 31).

The jury verdict (R. 12) was rendered in a civil action filed in the District Court by appellants against Challenge-Cook to recover damages for the wrongful death of Ronald T. McGowne (McGowne) alleged to have been caused by a concrete mixer manufactured by appellee Challenge-Cook. (R. 1-7). Jurisdiction of the District Court existed because of diversity of citizenship. (R. 2).

At the time of his death, McGowne was married to appellant Mrs. McGowne, and was the father of appellants Jimmy DeWayne McGowne and Ronald Kevin McGowne. (Transcript of Trial (Tr.) 89-90, 107, 113-114).

Summary of the Material Evidence

For a determination of the contention by appellee Challenge-Cook that the motion by appellee Challenge-Cook for a directed verdict should have been granted, thereby rendering harmless the assigned errors, if any, on this appeal, the evidence and permissible inferences therefrom will be summarized in the light most favorable to the appellants. The denial of a motion for a directed verdict is reviewed under the same standards as a motion for judgment notwithstanding the verdict enumerated by Justice Blackmun (then Circuit Judge Blackmun) in Hanson v. Ford Motor Co., 278 F.2d 586, at 596 (C.A. 8 1960) and recently applied in Russell v. United Parcel Service, Inc., 666 F.2d 1188 (C.A. 8 1981), as follows:

(I)n passing upon the motion for judgment, the trial court and this court are (1) to consider the evidence in the light most favorable to the plaintiffs as the parties prevailing with the jury; (2) to assume that all conflicts in the evidence are resolved by the jury in favor of the plaintiffs; (3) to assume as proved all facts which the plaintiffs' evidence tends to prove; (4) to give the plaintiffs the benefit of all favorable inferences which may reasonably be drawn from the facts proved; and (5) to deny the motion if, reviewing the evidence in this light, reasonable men could differ as to the conclusions to be drawn from it.

In accord are Polk v. Ford Motor Co., 529 F.2d 259, at 266-267 (C.A. 8 1976), cert denied, 426 U.S. 907, 96 S.Ct. 2229, 48 L.Ed.2d 832 (1976), applying the above quoted standard of review in a strict liability action based upon the substantive law of Missouri, Farner v. Paccar, Inc., 562 F.2d 518, at 522 (C.A. 8 1977), and Tribble v. Westinghouse Electric Corp., 669 F.2d 1193 (C.A. 8 1982).

McGowne was employed as an apprentice or "helper" mechanic by the Vonder Haar Concrete Company (Vonder Haar) for a little over a year from June 1977 until his death on September 27, 1978. The duties of a mechanic at Vonder Haar were repair work on the concrete plant, and maintenance, upkeep and service of concrete trucks and concrete mixers. The repair work on the concrete plant included fixing rollers, gearboxes, conveyors and gates. The maintenance of the concrete trucks and concrete mixers included changing tires, checking oil, putting in new rear ends, and repairing concrete chutes and concrete chute hoists. About one percent of a mechanic's time at Vonder Haar was devoted to removing lumps of concrete from the drums of the concrete mixers.

The concrete mixers at Vonder Haar are mounted on "cabs" or trucks manufactured by companies such as "Ford" and "International". The concrete mixers are manufactured by one of three companies and are known by the truck drivers and mechanics at Vonder Haar as a "Rex", a "Challenge" or a "Rocket".

The "Challenge" concrete mixer, on which McGowne was working when he was fatally injured, was manufactured by appellee Challenge-Cook and was an "open-ended inclined axis rotating drum mixer". Sand, cement, "aggregate", water and other materials are mixed in the rotating drum of the concrete mixer to form concrete. These materials are "charged" or loaded from an overhead "batch" plant, through the "charging hopper" of the concrete mixer, into the drum of the concrete mixer below. The "charging hopper" is a "cone shaped funnel" and has a top opening which is "36 inches across the back and 26 inches deep". (Tr. 319, 633). Blades or fins are attached (welded in a "spiral") to the inside shell of the drum. When the concrete mixer is "charged" or loaded, the drum and the attached blades are rotated in a direction which has a tendency to draw the materials into the drum. When the concrete is "discharged" or unloaded, the drum and the attached blades are rotated in the reverse direction carrying the concrete up the blades and discharging it out the upper open end of the drum. As the concrete is discharged from the drum, it is collected by the "discharge hopper" or "collecting hopper" of the concrete mixer and is carried from the "discharge hopper" to the lower "discharge chute". A "foldover chute" is connected by a "hinged joint" to the "discharge chute". The "foldover chute" can be unlatched and folded down from a stowed position to become a lower extension of the "discharge chute".

The inside of the "charging hopper" and the upper inside of the drum can be seen from a platform on the back of the concrete mixer. The platform is about 22 inches long and 12 inches wide. The top edge of the "discharge hopper" is about 14 or 15 inches above the platform. The top edge of the "charging hopper" is about 46 or 47 inches above the platform and about 31 inches above the top edge of the "discharge hopper". The rotating fins or blades of the concrete mixer can be seen by a person standing on the platform and looking into the "charging hopper" and drum. Additional evidence favorable to appellants of the "shear point" created by the rotating fins or blades of the concrete mixer, and the absence of a warning near this "shear point" and the "charging hopper", appears in the summary of the testimony of Gerald Rennell below.

Vonder Haar operates about five to six concrete plants. McGowne normally worked at the Vonder Haar "Fenton plant". On the day of his death, September 27, 1978, because of a vacation of another employee, McGowne was working at the Vonder Haar concrete plant on Dorsett Road in Maryland Heights, Missouri (Dorsett plant) rather than at the "Fenton plant". On that day, a truck driver, employed by Vonder Haar, delivered a load of concrete from the Dorsett plant in a concrete truck equipped with a "Challenge" mixer. While delivering the concrete and returning to the Dorsett plant, the truck driver heard a noise which sounded like a loose piece of concrete bouncing in the drum of the mixer. After returning to the Dorsett plant, the truck driver washed out the concrete that was in the truck, checked in the drum of the concrete mixer, rotated the drum in both directions, "washed the truck off", but was unable to determine the cause of the noise.

The truck driver reported the noise to the dispatcher at the Dorsett plant. The dispatcher told McGowne to check the truck and find the noise. Thereafter, McGowne was seen looking into the "charging hopper" of the mixer while the drum was rotating and was later found dead and decapitated with his lower legs hanging over the "charging hopper" and his body extending into the drum. No witness testified that he or she saw the actions of McGowne at the exact time of McGowne's fatal injury.

Gerald Rennell (Rennell), a safety consultant, testified as an expert witness for the appellants. Rennell testified in part that in November 1979, he inspected a Challenge-Cook mixer on truck number 21 at Vonder Haar (the truck on which McGowne was fatally injured); that Rennell looked into the charging hopper of truck number 21; that he observed a "shear point" created when the rotating fins (or blades) pass the stationary charging hopper of the concrete mixer; that a "shear point" is created when one object passes "another object close enough to cause a shearing action like on a pair of scissors" (Tr. 368); that the "shear point" created by the rotating fins (or blades) was a hazard capable of causing serious injury (Tr. 405); and that it is possible to fall into the charging hopper while standing on the discharge hopper of the concrete mixer (Tr. 500). Rennell also testified in part that in 1972 he inspected concrete mixers at the DeQuindre Sand & Gravel Company which were not substantially different from the concrete mixers manufactured by Challenge-Cook (Tr. 407-409); that during this inspection he observed workers in a position on the concrete mixers which in his opinion allowed the workers "to reach an area that would be hazardous where there were rotating machine parts or he could slip and fall into an area that there were rotating machine parts" (Tr. 410-413); and that as a result of this inspection he recommended that a warning be placed on the concrete mixers such as a warning placed on the discharge hopper which stated, "Danger, do not stand on this hopper while the drum is rotating" (Tr. 413, 420-421). After a hypothetical question submitting a version of the facts of McGowne's fatal injury (Tr. 431-436), Rennell gave the following opinion testimony (...