Rahmig v. Mosley Machinery Co.

Decision Date11 September 1987
Docket NumberNo. 85-529,85-529
Citation226 Neb. 423,412 N.W.2d 56
Parties, 75 A.L.R.4th 397, 56 USLW 2220, Prod.Liab.Rep. (CCH) P 11,546 Clayton RAHMIG, Appellee, v. MOSLEY MACHINERY COMPANY, INC., Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Products Liability: Actions: Negligence. In products liability, there is a significant distinction between a manufacturer's liability as the result of negligent manufacture and liability for the manufactured product on account of strict liability in tort. In a cause of action based on negligence, the question involves the manufacturer's conduct, that is, whether the manufacturer's conduct was reasonable in view of the foreseeable risk of injury, whereas in a cause of action based on strict liability in tort, the question involves the quality of the manufactured product, that is, whether the product was unreasonably dangerous.

2. Products Liability: Actions: Negligence. In a cause of action for products liability on account of a design defect, the test for a manufacturer's strict liability in tort is the user-contemplation test or consumer-contemplation test reflected in Restatement (Second) of Torts § 402A (1965).

3. Products Liability: Proof. To recover on a claim of strict liability in tort for a defectively designed product, a plaintiff is required to prove by a preponderance of evidence: (1) The defendant placed the product on the market for use and knew, or in the exercise of reasonable care should have known, that the product would be used without inspection for defects; (2) the product was in a defective condition when it was placed on the market and left the defendant's possession; (3) the defect is the proximate or a proximately contributing cause of plaintiff's injury sustained while the product was being used in the way and for the general purpose for which it was designed and intended; (4) the defect, if existent, rendered the product unreasonably dangerous and unsafe for its intended use; and (5) plaintiff's damages were a direct and proximate result of the alleged defect.

4. Products Liability: Proof. In a products liability action, the plaintiff has the burden to prove that the alleged defect existed when the product left the manufacturer.

5. Products Liability: Proof. Whether a product is in a defective condition unreasonably dangerous to its user is, generally, a question of fact.

6. Rules of Evidence: Negligence. Regarding Neb.Evid.R. 407 (Neb.Rev.Stat. § 27-407 (Reissue 1985)), encouragement of remedial measures is the principal reason for the rule excluding evidence that such measures were taken. The policy underlying Neb.Evid.R. 407 encourages people to take safety precautions.

7. Rules of Evidence: Negligence: Proof. Whereas the Nebraska Evidence Rules, generally, are inclusionary and favor admission of relevant evidence rather than exclusion of evidence with probative value, Neb.Evid.R. 407 (Neb.Rev.Stat. § 27-407 (Reissue 1985)) excludes from admissible evidence certain matters which occur after a particular event in question, where negligence or culpable conduct is sought to be proved in connection with such event.

8. Rules of Evidence: Impeachment. Neb.Evid.R. 407 (Neb.Rev.Stat. § 27-407 (Reissue 1985)) does not require exclusion of evidence concerning subsequent repairs, alterations, or precautions when such evidence is offered for the purpose of impeachment affecting credibility of the witness impeached.

9. Directed Verdict. In a jury trial, when evidence compels but one reasonable conclusion regarding an issue or question in the litigation, a court may properly direct a verdict on such issue or question.

10. Products Liability. Assumption of risk, under appropriate circumstances, may be an affirmative defense in an action brought for a manufacturer's strict liability in tort for a design defect.

11. Products Liability: Words and Phrases. In the law of products liability, misuse is use of a product in a way not reasonably foreseeable by the supplier or manufacturer, while assumption of risk is a user's willingness or consent to use a product which the user actually knows is defective and appreciates the danger resulting from such defect.

12. Products Liability. A user's knowledge about the general danger or hazard in using a product will not support the defense that the user knew the product's specific defect and dangerous condition resulting from such defect.

13. Products Liability. In a products liability case, misuse is not an aspect of assumption of risk.

14. Negligence: Directed Verdict. Initially, in a jury trial of a negligence action, the trial court must decide whether a plaintiff is guilty of negligence, and, if so, must then decide whether evidence is such that only one reasonable conclusion is permissible--the plaintiff's contributory negligence which, as a matter of law, bars recovery and authorizes a directed verdict for the defendant. If, as the result of such initial consideration of the evidence, the trial court determines that the jurors may reasonably draw different conclusions from the evidence, existence of the plaintiff's negligence or contributory negligence and comparative negligence are questions of fact for the jury.

15. Products Liability: Negligence. Contributory negligence, which consists merely of a plaintiff's failure to discover a defect or guard against the possibility of a defect's existence, is not a defense in an action based on strict liability for a defective and unreasonably dangerous product.

16. Trial: Appeal and Error. In the absence of an abuse of discretion, a trial court's ruling regarding the extent, scope, and course of cross-examination will be upheld on appeal.

17. Trial: Appeal and Error. Generally, in the absence of an offer of proof, unless the substance of the evidence is apparent from the context in which the question is asked, no error may be predicated upon a court's ruling in excluding testimony.

18. Rules of Evidence: Jurors: Affidavits. Neb.Evid.R. 606(2) ( Neb.Rev.Stat. § 27-606(2) (Reissue 1985)) permits use of a juror's affidavit to establish that the jury considered prejudicial information emanating from a source other than evidence presented at trial.

19. Rules of Evidence: Jurors: Affidavits. Neb.Evid.R. 606(2) ( Neb.Rev.Stat. § 27-606(2) (Reissue 1985)) prohibits a juror's affidavit to impeach a verdict on the basis of jury motives, methods, misunderstanding, thought processes, or discussions during deliberations, which enter into the verdict.

20. Products Liability: Proof: Case Overruled. Insofar as Nerud v. Haybuster Mfg., 215 Neb. 604, 340 N.W.2d 369 (1983), requires a plaintiff to prove a feasible or practicable alternative and safer design before such plaintiff may recover on strict liability in tort for a manufacturer's design defect, Nerud v. Haybuster Mfg., supra, is overruled. Also, regarding the requirement that a plaintiff prove feasibility or reasonable alternative design to prevail on a cause of action for negligent design in a products liability case, Nerud v. Haybuster Mfg., supra, is overruled.

Francis L. Winner of Winner, Nichols, Douglas and Kelly, Scottsbluff, for appellant.

Robert P. Chaloupka of Van Steenberg, Brower, Chaloupka, Mullin & Holyoke, P.C., Scottsbluff, and Michael J. Javoronok of Holtorf, Kovarik, Nuttleman, Ellison, Mathis & Javoronok, Gering, for appellee.


SHANAHAN, Justice.

Mosley Machinery Company, Inc., appeals the judgment entered on the verdict for Clayton Rahmig in a personal injury action based on a products liability claim for damages caused by a guillotine metal scrap shear manufactured by Mosley. We affirm.


In 1979, Mosley manufactured a 500-ton guillotine scrap shear for use in the scrap metal business, marketed the shear with the trade name "Monster," and delivered one such shear to Rahmig's employer, Scottsbluff Pipe & Supply, Inc. The Monster was "capable of sizing and shearing two car frames simultaneously" and could "crush car blocks ... or break engine blocks." The Monster had several parts and points important to Rahmig's claim: a loading deck; ram feed; squeeze box, or compactor; shear head, containing a shear cylinder and blades for cutting the compacted scrap metal; shear point, where the blades came together; discharge chute, as a conduit for metal sheared by the Monster; and a shaker table, where sheared metal, having moved from the Monster, came to rest before removal by a crane. The Monster was operated from a control tower above the shear head.


Scrap metal, having been placed on the Monster's loading deck, was compacted (squeeze box) and then pushed (ram feed) into an opening at the shear point in the Monster's cutting chamber, where a 30-inch blade, located at the end of a 2-ton pivoting blade-arm, was pushed downward by a piston in the hydraulic shear cylinder. The movable blade, or shear, made contact with a stationary blade at the shear point, cutting the compacted scrap metal in an action similar to a scissors or guillotine. After metal had been sheared by the two blades, the sheared metal dropped into a slightly descending discharge chute or funnel located adjacent to the bottom, or stationary, blade. When the movable blade is at the shear point, the blade-arm is in a nearly horizontal plane, reducing the size of the cutting chamber to a height of 3 feet, which corresponds with the height of the discharge chute. As metal was cut, any previously sheared metal in the discharge chute was forced through and out the chute onto the shaker table for removal by a crane. The piston then raised the blade-arm to repeat the cycle. The Monster was not self-cleaning, that is, it contained no mechanical apparatus for expulsion or extraction of sheared metal. Any change in the type of metal being processed through the Monster...

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