O'NEIL v. WR Grace & Company
| Decision Date | 08 April 1969 |
| Docket Number | No. 25763.,25763. |
| Citation | 410 F.2d 908 |
| Parties | Floyd B. O'NEIL, Appellant, v. W. R. GRACE & COMPANY and Maryland Casualty Company, Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Louis D. Curet, Baton Rouge, La., Bryant W. Conway, Baker, La., D'Amico & Curet, by Louis D. Curet, Baton Rouge, La., for appellant.
John S. White, Jr., Kennon, White & Odom, Baton Rouge, La., for appellees.
Before GOLDBERG and AINSWORTH, Circuit Judges, and SPEARS, District Judge.
This is a diversity action brought by the plaintiff Floyd B. O'Neil for personal injuries received in an explosion at the plant of the defendant W. R. Grace and Company (hereinafter referred to as Grace) for the alleged negligence of Grace, and against the defendant Maryland Casualty Company under the Louisiana direct action statute allowing recovery against the insurer of a tortfeasor. The case was tried before a jury, and a verdict was returned in favor of the plaintiff, assessing his damages in the amount of $43,750.00. Upon a proper motion by the defendants the trial court granted a judgment notwithstanding the verdict, and, in the alternative, a new trial. It is from that order that this appeal is taken. At the outset, therefore, we must determine whether the plaintiff's evidence made out a prima facie case of negligence against the defendant Grace, and whether the defendants' evidence made out a conclusive case of contributory negligence against the plaintiff — that is, whether the evidence in this case was such that reasonable inferences could not be drawn that would result in findings in favor of the plaintiff on both these crucial issues. We reverse the district court and direct that judgment be entered on the verdict.
There is very little dispute as to the facts in this case, and it will be sufficient for the purposes of this opinion to briefly summarize them. The parties will be referred to as they were in the trial court. At the time of the accident plaintiff was a civil engineer employed by the H. E. Wiese Company, which, in turn, had contracted to erect some mechanical equipment in the plant of Grace. Plaintiff was in charge of the crew that was to do the construction work at the plant where Grace was engaged in manufacturing enterprises that involved the handling of dangerous gases, including the explosive gases cyclohexane and ethylene. The construction work involved some welding several feet off the ground and approximately fifty feet away from a device known as an off-specs stripper. This device was used to separate and remove from the plant waste material and to recover the explosive gas cyclohexane. It was fed by several lines from different parts of the plant, and the material flowing into it was normally at a very low pressure. From the off-specs stripper was a downspout that carried waste material to a Dempsey Dumpster located nearby. It appears that because of the explosiveness of some of the material used, several precautions were normally taken by Grace in this area, including the designation of certain personnel as being responsible for continually checking safety factors, and the requirement that before welding could take place in the area a "hot-work permit" must be issued.
The evidence indicates that on the day before the accident occurred, plaintiff applied to the proper personnel of Grace for the requisite hot-work permit needed to carry on the welding operations the next day. Apparently, because of the danger of explosion under the conditions as they existed at that time, the permit was denied. However, by the next day certain alterations in the plant had been made so that conditions for welding would be less dangerous. Both the downspout from the off-specs stripper and the Dempsey Dumpster had been wrapped with a shroud of plastic material fastened with wire. Also, the downspout had been rigged with a pipe and an air reductor which had as its purpose the sucking of fumes from the downspout and discharging them from the area. The plant safety inspector, after making a visual inspection of the precautions taken, and after conducting an explosimeter test of the area, concluded that there were no dangerous fumes in the air and that it would be safe to conduct the welding operations. He consequently issued and signed the requisite hot-work permit, which, according to its provisions, was valid for over 8 hours. It contained a statement signed by the maintenance supervisor of Grace, and by its senior operator, attesting to the fact that the area in question had been checked and that work could be done without undue hazard to persons or property. Under the heading "Precautions Taken by Oper. Dept." the permit contained the following statement: "Operator in Area, Stop at his Request." Having obtained the requisite hot-work permit, plaintiff directed the men in his crew to begin the welding operations.
Within about ten minutes after the permit had been issued, and after the welding operations had begun, plaintiff noticed that the shroud wrapped around the downspout and the Dempsey Dumpster appeared to have opened a little, and that fumes were escaping around it. He immediately walked toward the shroud and attempted to adjust it so that it was back in its original position. There was some testimony that plaintiff was warned by two of the employees of Grace to move away from the area, but this was denied by plaintiff. There was no testimony that plaintiff was directed to have his men stop the welding operation. While plaintiff was working with the shroud, there apparently were two attempts made by employees of Grace to close certain valves and thus to shut off the flow of materials into the off-specs stripper. The senior operator for Grace attempted to turn valves that were located near the off-specs stripper, and the operator assigned to this specific area attempted to shut off valves located in a control room some distance away. However, as they were turning these valves, neither of the men looked at the gauges nearby to determine whether the material flowing into the stripper was under too much pressure. As plaintiff was adjusting the shroud, and as the valves were being shut by the operators, the explosion occurred injuring the plaintiff.
The standard to be followed in ruling upon a motion for judgment notwithstanding the verdict is the same as that to be followed regarding a motion for directed verdict; indeed, a judgment notwithstanding the verdict technically is a "judgment entered in accordance with * * * the motion for directed verdict". Fed.R.Civ.P. 50(b). A judgment notwithstanding the verdict should not be granted unless the evidence, together with all inferences that can reasonably be drawn therefrom, is so one-sided that reasonable men could not disagree on the verdict. See Ricketson v. Seaboard Airline R.R. Co., 403 F.2d 836, 839 (5th Cir.1968).
In the case now before the court, this means that the judgment notwithstanding the verdict can be affirmed only if the evidence is such that all reasonable men would agree either that Grace was not negligent or that plaintiff was negligent. In making our determination we shall view the evidence in a light most favorable to plaintiff.
It was generally accepted by the trial court and by the parties in this case that the most reasonable explanation for the explosion was that a spark from the welding operations ignited the escaping fumes. We are inclined to agree; and since the jury reasonably could have reached that conclusion, we will accept it as the basis for our analysis of the evidence. The question for this court is whether the trial court erred in ruling (1) that there was insufficient evidence to go to the jury on the issue of defendant's negligence, and (2) that the evidence as to plaintiff's negligence was conclusive.
In our opinion it can reasonably be inferred from the evidence that Grace was negligent, and that such negligence was the proximate cause of the explosion. The first element generally assumed to have contributed to the explosion was the escape of the fumes into the area, and there is sufficient evidence to support a finding that Grace was responsible for this. There was, for example, testimony that the off-specs stripper might have been subjected to more pressure than was normal, and that this caused the escape of the fumes. It was Grace's agents who installed the plastic shroud, who conducted the explosimeter test of the area, and who subsequently issued the hot-work permit representing that conditions would be safe for 8 hours. No doubt conditions would have been much safer if the plant had been completely shut down, but Grace decided to issue the permit after less drastic precautions had been taken, because it did not want to interrupt the manufacturing process for the welding operations.
In addition, it could be inferred from the evidence that Grace played a primary role in continuing the welding operations as the fumes were escaping. The hot-work permit stated that an operator employed by Grace would be in the area, and that if the operator requested that the welding operations be stopped his request should be heeded. Although there were two operators who saw the escaping fumes and who attempted to shut off valves in order to prevent the further escaping of fumes, neither of them requested that the welding operations be stopped.
We conclude, therefore, that there was ample evidence in the record from which the jury reasonably could have found that the acts of Grace relating to the escape of the explosive fumes, and/or with respect to the continuance of the welding while the fumes were escaping, constituted negligence proximately causing the explosion.
The trial court appeared to base its decision primarily on its...
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