Pitts v. Electro-Static Finishing, Inc., ELECTRO-STATIC

• Decision Date: 23 October 1979
• Docket Number: No. 79-1106,ELECTRO-STATIC,79-1106
• Citation: 607 F.2d 799
• Parties: Bryan D. PITTS, Appellant, v.FINISHING, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 799

607 F.2d 799

Bryan D. PITTS, Appellant, v. ELECTRO-STATIC FINISHING, INC., Appellee.

No. 79-1106.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 11, 1979.

Decided Oct. 23, 1979.

Michael A. Kampmeyer, Kampmeyer, DeCourcy, Fetsch & Kronschnabel, St. Paul, Minn., for appellant.

James T. Martin, Gislason & Martin, Edina, Minn., for appellee.

Before BRIGHT, Circuit Judge, MARKEY, Chief Judge, ^* and HENLEY, Circuit Judge.

HENLEY, Circuit Judge.

This is a personal injury suit that reaches us from the United States District Court for the District of Minnesota following two jury trials. Chief District Judge Paul Benson of North Dakota, sitting by designation, presided over the first trial, and District Judge Donald D. Alsop of Minnesota presided over the second trial. The jurisdiction of the district court was predicated on diversity of citizenship with the requisite amount in controversy being involved. 28 U.S.C. § 1332(a) (1976).

Plaintiff, an employee of a crane manufacturer, was injured on the premises of the defendant on May 22, 1972 while engaged in the attempted repair of an electrically powered crane that was used, along with other cranes, in the defendant's business operation.

Plaintiff received workmen's compensation through his employer but brought this action against the defendant alleging that the defendant was a third party tortfeasor. It was the theory of the plaintiff that his injuries were proximately caused by negligence on the part of the defendant, and that the defendant was liable to him for his injuries.

The defendant denied liability and took issue as to damages. The position of the defendant was that it was not guilty of any negligence and that the plaintiff was guilty of contributory negligence ¹ and had voluntarily assumed the risk of injury. ²

In both trials of the case interrogatories were used. In the first trial the jury assessed damages at $150,000.00 but charged plaintiff with contributory negligence to the extent of 20%. This reduced the award to $120,000.00. ³

The second jury found that the defendant had indeed been negligent but did not find that the defendant's negligence was the direct or proximate cause of plaintiff's injury. The failure of the jury to find "causal negligence" on the part of the defendant was fatal to the claim of the plaintiff and rendered it unnecessary for the jury to answer other questions that had been put to it, including a question as to the contributory negligence of the plaintiff and the question relating to the gross amount of damages sustained by plaintiff as a result of his injuries.

Returning for a moment to the first trial after the jury's verdict had been returned the defendant moved for judgment notwithstanding the verdict, or, alternatively, for a new trial. Fed.R.Civ.P. 50(b), (c) and (d). Judge Benson denied the motion for judgment n. o. v. but granted the motion for a new trial.

Following the second trial, plaintiff moved for a new trial; the motion was denied and final judgment in favor of the defendant was entered. This appeal followed. ⁴

As to Judge Benson's order granting the defendant a new trial plaintiff contends that the action of the trial judge amounted to error and abuse of discretion.

With particular regard to Judge Alsop's order plaintiff contends that the trial judge erred in refusing to admit a particular piece of evidentiary material and erred in refusing to instruct the jury on the doctrine of res ipsa loquitur that plaintiff had invoked, and plaintiff contends finally that he should be awarded a new trial "in the interest of justice."

Both sides recognize that the substantive rights of the parties are governed by Minnesota law. We may observe, however, that in a diversity case in federal court it is sometimes hard to differentiate between what is substantive and governed by state law and what is procedural and governed by federal law. Fortunately, in a good many cases it really makes no difference which standard is used; the result will be the same under either standard.

The accident involved in this case was an unusual if not a freakish one.

The defendant, Electro-Static Finishing, Inc., operates a manufacturing plant in the City of Minneapolis. In its operation it makes use of three electrically powered cranes, which may be called Crane 1, Crane 2 and Crane 3. These cranes move by electric power along an overhead runway; all of them are on the same runway, one behind the other. Crane 2 was the middle machine being located between Crane 1 and Crane 3. When a crane is in need of repair, it is moved along the runway to a service balcony from which it is accessible to the mechanic who is doing the repair work. If Crane 2 is in need of repair, both it and Crane 1 have to be moved along the runway to the service balcony. Presumably if Crane 3 has to be repaired, all three cranes have to be moved over the balcony.

There is a central electrical control whereby power to all three cranes can be cut off. Additionally, each individual crane has a switch whereby the power to it can be cut off without affecting the ability of the other two cranes to operate.

Unknown to anyone involved, the individual switch on Crane 1 was defective in that it could malfunction in such a manner that the crane could receive power even though the individual switch on the crane was in the "off" position.

On the occasion of the accident Crane 2 was in need of repair. Plaintiff's employer, John H. Hearding, a crane manufacturer, was contacted by the defendant's manager or superintendent for the purpose of having Crane 2 repaired, and plaintiff, Pitts, a comparatively inexperienced employee of Hearding, was dispatched to do the work.

Plaintiff positioned Cranes 1 and 2 over the repair balcony and turned their individual power switches to the "off" position. He did not cut off the power to all three cranes by pulling the central control switch although he could have done so. Plaintiff was unaware of the allegedly defective condition of the switch controlling Crane 1, and he had no idea that that crane could go into motion while the individual switch was cut off.

While the plaintiff was in close proximity to Crane 2, Crane 1 suddenly "came to life" and ran into Crane 2 which was knocked into plaintiff who was thereby caused to sustained serious and permanent injuries.

While plaintiff was painfully and permanently injured, and while he has been required to undergo major surgery, he is not totally disabled. In his complaint he sought a recovery of $90,000.00, and in his closing argument in the first trial counsel for plaintiff told the jury that it should find that all of the negligence in the case was that of the defendant, and that it should assess plaintiff's damages at a figure in the neighborhood of $90,000.00. As has been seen, the jury assessed plaintiff's damages at $150,000.00 gross but charged him with 20% Of the fault. The remaining net figure, $120,000.00, is $30,000.00 in excess of what plaintiff asked for and what his lawyer suggested to the jury would be appropriate.

In dealing with the defendant's post-trial motions Judge Benson filed a full opinion. As to the motion for judgment n. o. v. the Judge expressed the view that plaintiff had made a submissible, albeit a very weak, case. The court observed that the only evidence supporting plaintiff's claim consisted of his uncorroborated testimony to the effect that two unidentified crane operators employed by defendant had told him after the accident that Crane 1 had moved in the same manner as it did on the day of the accident on at least one prior occasion, and the testimony of plaintiff that he had been requested by one of the defendant's managing officers not to disconnect all three cranes at the central control switch because it was desired to keep Crane 3 in use while Crane 2 was being repaired and while Crane 1 was inoperable due to its position in relation to Crane 2.

However, when the trial judge came to consider the alternative motion of the defendant for a new trial, he found that on the liability issues the verdict was clearly against the preponderance of the evidence, and that the amount of the verdict was such as to suggest passion and prejudice on the part of the jurors.

In his effort to reverse Judge Benson plaintiff contends that in view of the provisions of the Minnesota comparative negligence statute the district court in passing on the defendant's motion for a new trial should have applied some "state standard" and erroneously applied an impermissible "federal standard."

That contention is devoid of merit. This court has recently held that in a diversity case the question of whether a new trial is to be granted is a federal procedural question and is to be decided by reference to federal law. Brown v. Royalty, 535 F.2d 1024, 1027 (8th Cir. 1976). That is the better rule and the one followed by most federal courts. 11 C. Wright & A. Miller, Supra, § 2802, pp. 29-31, and cases cited.

The federal rule is that the question of granting or denying of a motion for a new trial following a jury verdict addresses itself to the judicial discretion of the trial judge, and his decision will not be reversed by this court in the absence of a showing of abuse of discretion. Voegeli v. Lewis, 568 F.2d 89, 94-95 (8th Cir. 1977); Brown v. Royalty, supra, 535 F.2d at 1027. And, we observe that both of those cases cited the earlier case of Sanden v. Mayo Clinic, 495 F.2d 221 (8th Cir. 1974), which was a diversity case that arose and was tried in Minnesota, with Chief Judge Devitt being the presiding judge.

Actually, we see no substantial difference between the "federal standard" and the "Minnesota standard." In Minnesota the rule is that motions for new trials are addressed to the sound discretion of the trial court. See, e. g., Bowman v. Pamida, Inc., 261 N.W.2d 594 (Minn.1977); Ossenfort v. Associated Milk Producers, Inc., 254 N.W.2d 672 (Mi...