Mulay Plastics, Inc. v. Grand Trunk Western R. Co.

• Decision Date: 11 June 1987
• Docket Number: 86-2023,Nos. 86-1936,s. 86-1936
• Citation: 822 F.2d 676
• Parties: MULAY PLASTICS, INC., Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Dobson Heavy Haul, Inc., and Prestolite Company, Defendants-Appellees. GRAND TRUNK WESTERN RAILROAD COMPANY, Cross-Appellant, v. MULAY PLASTICS, INC., Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 676

822 F.2d 676

MULAY PLASTICS, INC., Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Dobson Heavy Haul, Inc., and Prestolite Company, Defendants-Appellees.

GRAND TRUNK WESTERN RAILROAD COMPANY, Cross-Appellant, v. MULAY PLASTICS, INC., Cross-Appellee.

Nos. 86-1936, 86-2023.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 25, 1987.

Decided June 11, 1987.

Francis X. Grossi, Jr., Katten, Muchin, Zavis, Pearl, Greenberger & Galler, Chicago, Ill., for plaintiff-appellant.

James A. Romanyak, Romanyak & Miller, Donald G. Peterson, Schaffenegger, Watson & Peterson, Richard G. French, French, Rogers, Kezelis & Kominiarek, P.C., Chicago, Ill., for defendants-appellees.

Before CUMMINGS and WOOD, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

Mulay's injection molding machine suffered damage from undetermined causes while being shipped. Mulay sued the shipper the rigger, and the carrier under the common law; the Uniform Commercial Code, Ill.Rev.Stat., Ch. 26 Sec. 2-509; and the Carmack Amendment, now 49 U.S.C. Sec. 11707. The jury found for defendants. Mulay contended that the jury's verdict was not supported by the evidence and was inherently contradictory. The trial judge declined to grant a new trial or judgment notwithstanding the verdict and Mulay appeals. Grand Trunk cross-appeals from the order of the district court awarding attorney's fees to Mulay as a procedural sanction. We will affirm.

I

Mulay purchased a massive piece of machinery, a used injection molding machine, from Prestolite in February of 1981. Prestolite had used the machine for eleven years and sold it to Mulay "as-is." The injection molding machine consisted of an injection end, a clamp end, and a base. ¹ The clamp end and base were shipped as a single unit (the "machine") from Prestolite's plant in Bay City, Michigan, to Mulay's in Addison, Illinois. Together, the clamp end and base are twenty-seven feet long and fifteen feet high and weigh about seventy-five tons. The clamp end itself, which rests on the base, weighs fifty tons. Mulay hired Dobson to move the machine from the Prestolite plant to a Grand Trunk railway siding and to load it on a Grand Trunk flatcar.

Mulay took no part in transporting the machine, leaving the disassembly, loading, rigging, and carriage to the defendants. Dobson brought the machine by truck from Prestolite's plant to Grand Trunk's siding and loaded it by crane onto the flatcar. Dobson blocked and bolted the base of the machine to the flatcar but did not block the clamp end, leaving it simply in its position atop the base. Thus, the six one-inch steel bolts and two one and one-quarter inch steel sleeve dowels which held the clamp end in place during operation were the only things holding the clamp end in place during shipment besides gravity and friction. The bolts guarded against vertical movement and the dowels against horizontal. The bolts and dowels can only be seen if a sheet metal cover is removed from the sides of the machine.

Grand Trunk's car man saw the machine four times. He took rough measurements of it in Prestolite's plant. He made a general inspection after it was loaded on the flatcar. Dobson's rigging foreman told him then how the machine would be secured and told him that there were parts above the base. He inspected it after rigging was finished and again before it left the siding. He approved the machine for transport as rigged.

Grand Trunk then transported it as far as Markham, Illinois. The machine was twice weighed underway at weigh stations of the Illinois Central Gulf Railroad Company. Illinois Central both times issued a weigh bill with instructions not to exceed thirty miles per hour, because the machine exceeded Illinois Central weight requirements for that type of load, flatcar and track. Signs were put on the flatcar with the legend, "Do Not Hump." "Humping" means coupling railway cars at speeds greater than four miles per hour.

In Markham, the unit was found to be severely damaged. The clamp end had come loose and moved almost six feet, damaging the machine in various ways. No one ever determined when the clamp end had moved. The bolts had been cut in half by the clamp end's movement. One witness testified that the dowels were found intact at the bottom of the flatcar. Another testified that the dowels were sheared.

Mulay brought suit against Prestolite, Dobson, and Grand Trunk, alleging that each was negligent. As to each defendant, Mulay sought to prove negligence both through specific acts and omissions and by the application of res ipsa loquitur.

Mulay also had a non-negligence theory of liability against each defendant. Mulay alleged breach of contract by Dobson, a claim that Mulay does not pursue on appeal. Mulay sought recovery from Prestolite under Illinois statutory law for failing to "duly deliver" the machine as required by the Uniform Commercial Code, Sec. 2-509(1)(a). Against Grand Trunk Mulay included a count under the Carmack Amendment, 49 U.S.C. Sec. 11707, which makes a carrier liable under federal law for damage caused to cargo unless he can establish one of several defenses; the one defense relevant here would be a showing that Grand Trunk was not negligent and that the damage to the machine was a result of the "inherent nature or vice" of the machine.

Grand Trunk brought a counterclaim against Mulay for the shipping bill, which Mulay had declined to pay.

The trial court granted summary judgment for Mulay against Grand Trunk on the Carmack Amendment count but subsequently vacated the judgment on the basis of new deposition testimony. Because of Grand Trunk's delay in presenting the new testimony, the court awarded attorney's fees to Mulay. The court also denied a motion by Dobson to amend its answer to include the affirmative defense of comparative negligence and barred the introduction of evidence of Mulay's comparative negligence at trial.

The witnesses at trial forwarded several theories to explain the damage. Some opined that a sudden large force caused by excessive speed or humping or another type of impact caused the clamp end to shift. Another believed that the dowels had become loose while the machine was used at Prestolite and had at some point fallen out, leaving nothing to hold the clamp end in place during transport but the bolts, which would not stop it from shifting horizontally.

After trial, the jury found for defendants on every claim and on the Grand Trunk counterclaim for shipping charges. The trial court denied Mulay's motion for judgment notwithstanding the verdict or for a new trial. Mulay appeals from that ruling and Grand Trunk cross-appeals the granting of attorney's fees.

II

There are claims in this case based on federal jurisdiction and on diversity jurisdiction. The federal standard of review on appeal of a ruling on a motion for judgment notwithstanding the verdict is the same as the standard the district court applies in considering the motion, whether there is substantial evidence to support the verdict. LaMontagne v. American Convenience Products, Inc., 750 F.2d 1405, 1410 (7th Cir.1984). Illinois ² allows judgments n.o.v. "only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria and Eastern Railroad Company, 37 Ill.2d 494, 229 N.E.2d 504, 513-14 (1967). The motions for a new trial are based on a claim that the jury delivered inconsistent verdicts; the rule is the same in both federal and Illinois courts that inconsistent verdicts require a new trial. Bates v. Jean, 745 F.2d 1146, 1152 (7th Cir.1984). Hinnen v. Burnett, 144 Ill.App.3d 1038, 99 Ill.Dec. 76, 81-82, 495 N.E.2d 141, 146-47 (5th Dist.1986).

We first address Mulay's contention that the damage was necessarily proximately caused by negligence on the part of at least one of the defendants. Simply stated, we believe that the jury could have found that the damage would have occurred even if none of the defendants was negligent. Mulay alleges that various shortcomings constituted negligence: failure by all defendants to inspect the dowels and by Prestolite to secure the dowels; failure by Dobson to block the clamp end and to call the manufacturer, NATCO, for instructions about how to rig the machine for rail transport; failure by Grand Trunk in allowing the machine to be shipped so rigged; negligent application of excessive force to the machine during shipping by Grand Trunk by "humping" or by transport at excessive speed.

Mulay did not establish that the dowels were missing or loose when they left Prestolite. A service manager for NATCO, the manufacturer of the machine, testified that the dowels may have become loose and fallen out while the machine was still at Prestolite. Another conclusion could be that the dowels, although apparently in order, worked their way loose underway. The witness gave no reason why that was less likely. It was not established that inspecting the dowels would have disclosed such a problem and prevented it. Thus, even if failure to inspect the dowels was negligent, it was not established to be a cause of the damage.

The NATCO service manager's testimony also gave the jury a basis for concluding that the damage would have occurred even if the alleged acts of negligence had not occurred, that is, even if the flatcar began its trip with the dowels securely in place and the clamp end rigged as the manufacturer itself rigged it for transportation. He testified that similar damage had occurred to similar machines when they were transported by rail even though it was NATCO's practice to secure the clamp end with cables. ³ He made no mention of any problem of dowel slippage in those cases. Because of this "problem of losing the units," NATCO has changed the way in which it ships the machines. NATCO...