Rice v. Hyster Co.

Citation273 Or. 191,540 P.2d 989
PartiesErnest R. RICE, Respondent, v. HYSTER COMPANY, a Nevada Corporation, and Hyster Company, a Nevada Corporation, dba Hyster Sales Company, Appellants. . *
Decision Date25 September 1975
CourtSupreme Court of Oregon

Patrick Ford, of Ford & Cowling, Medford, argued the cause and filed the briefs for appellants.

Robert H. Grant, of Grant & Ferguson, Medford, argued the cause and filed the brief for respondent.

TONGUE, Justice.

This is an action for personal injuries sustained by a workman on a construction job in Medford who was 'riding on the forks' of a forklift truck when either the forks, the 'intermediate upright,' or both, suddenly dropped and he fell off. Defendants include the manufacturer and the supplier of the lift truck. The complaint includes counts in both negligence and strict products liability. The case was tried by a jury, which returned a plaintiff's verdict for $175,759. Defendants appeal from the resulting judgment. We affirm.

Because defendants' assignments of error include the denial of their motions for nonsuit and directed verdict we have reviewed the entire and lengthy record, bearing in mind that in such a case plaintiff is entitled to the benefit of all conflicts in the evidence, as well as all favorable inferences which can reasonably be drawn from such evidence. See Pakos v. Clark, 253 Or. 113, 116, 453 P.2d 682 (1969).

The facts.

(1) The forklift truck and its 'three stage,' 30-foot 'tower.'

The forklift truck and 'tower' were manufactured by defendant Hyster Company in 1970 and then delivered to defendant Hyster Sales Company, a wholly owned subsidiary. The two defendants were treated as one entity for the purposes of this case. The 'tower' extends to a height of 30 feet. It consists of three upright 'stages' (inner, intermediate and outer) which telescope into each other. The hoisting mechanism consists of a hydraulic cylinder which raises and lowers a carriage by the use of chains. The forks are attached to the carriage.

The lift truck was leased by Hyster Sales Company to R. M. McGlohn, a subcontractor on a construction job in Medford, who loaned it to Medford Construction Co., plaintiff's employer, with the knowledge and approval of Hyster Sales Company.

The only previous use of the equipment was during its lease to ABC Television in Portland. It was then used to hoist a platform with television cameras and operators for the filming of a golf tournament.

(2) Previous difficulties and repairs.

During its use on the construction job prior to plaintiff's injury the equipment malfunctioned on three or four occasions when the second 'stage' of the tower would 'hang up' and either that stage or the forks would then drop from three to five feet with a loud noise, jarring the 'whole machine' and causing it to shake. On one of those occasions a 'latch' sheared off. On another occasion a bolt head or nut sheared off.

On those occasions Hyster Sales Company was called and sent a mechanic to repair the equipment. Once the Hyster repairman found that one 'latch' had a little 'lip' broken. In addition to repairing it he welded a piece on the 'channel support plate' because he found that the original plate was bent. There was testimony that if the 'latches' were out of repair this would permit a drop of the 'stage' of the 'upright.' There was also testimony that after these repairs the Hyster repairman said that the equipment had been fixed and that it was all right to operate.

(3) The accident.

On December 31, 1970, during the course of a construction job the foreman of Medford Construction Co. needed a pipe clamp which had been left on the roof of the building. The forklift truck was parked nearby.

Plaintiff testified that the foreman told him to get on the forks of the lift. He was then lifted to the roof of the building, where he retrieved the clamp, which he placed across the forks. He then crouched with both feet on one of the forks to be lowered to the ground, holding to the top part of the fork carriage.

The roof was 24 to 25 feet high. When plaintiff had been lowered to a level of from 14 to 20 feet from the ground he saw the lift chain 'build up and take in slack.' According to his testimony, the forks upon which he was standing immediately 'fell from under him' and then stopped. Meanwhile, plaintiff lost his grip on the carriage and fell between the forks.

According to the foreman who was operating the forklift, the fork carriage 'dropped' from three to four feet, commencing at about the 15-foot level.

(4) Subsequent inspections, tests and alterations.

Immediately after the accident one of the other workmen on the job, a mechanic, observed that one of the 'trips' on the same 'latch' which had previously been repaired by welding 'appeared to be out of line.'

The equipment was subsequently examined by a consulting engineer on behalf of the plaintiff. There was testimony from which the jury could have found that defendants' representatives gave plaintiff's engineer the impression that the equipment was still in the same condition as at the time of the accident. In fact, it had been substantially altered, principally by the substitution of heavier and stronger cross-members in the tower structure and by the straightening and rewelding of the channel support plate.

Without knowing of these changes plaintiff's engineer found a defect involving interference by a cross -member bolt head with a latch pin, which he concluded was a probable cause of the accident. He also experimentally duplicated a 'free fall' of the forks carriage.

Later, after the alterations became known and an attempt was then made by Hyster to restore the equipment to its original condition, plaintiff's engineer performed a second inspection. At that time he did not find the interference between bolt head and latch pin. He stated that a deflection or distortion of the upright members could have caused the accident. He also stated that the subsequent strengthening of the cross-members by Hyster would have stiffened the channel, making it less likely to twist. He testified, however, that because of the alterations he was unable to say which of the 'scientifically probable' causes was the one most likely to have caused the accident.

The equipment was also examined by defendants' engineers. One of them testified that damage to the channel support plate had probably been caused by the inner upright dropping far enough and repeatedly enough before proper repairs were made to a defective latching mechanism.

I. The court did not err in denying defendants' motions for nonsuit and directed verdict.

Defendants assign as error the denial of their motions for nonsuit and directed verdict. The denial of those motions was proper, of course, if there was any substantial evidence to sustain a verdict by the jury on either a theory of negligence or strict products liability.

Defendants claim that the only theory of negligence available to the plaintiff is res ipsa loquitur. They then argue that the requirements for application of that theory, as set forth in Pattle v. Wildish Construction Co., 270 Or. 792, 529 P.2d 924 (1974), were not satisfied. Specifically, they contend that the instrumentality was not in the exclusive control of the defendants and that the accident would not have happened but for plaintiff's action of voluntarily riding upon the bare forks.

In this case, however, the trial court withdrew the theory of res ipsa loquitur from consideration by the jury. In any event, after examining the record, we hold that wholly aside from any theory of res ipsa loquitur there was substantial evidence to support a finding by the jury that defendants were negligent in the maintenance of the equipment, if not in its original design and manufacture. This consisted of evidence from which the jury could properly find that there had been similar malfunctions of the equipment on previous occasions; that defendants' mechanics had undertaken to repair the equipment so that this would not happen again; that they had failed to make proper repairs, but had nevertheless assured the lessee that the equipment had been restored to good operating condition. Cf. Hickman v. Haughton Elev. Co., 268 Or. 192, 519 P.2d 369 (1974).

Defendants also contend that the evidence was insufficient to support recovery on a theory of strict products liability; that there was not 'a scintilla of evidence of product defect'; and that 'Hyster had no way of anticipating Medford Construction Company would direct its employee to follow an obviously unsafe practice' by riding on the bare forks of the lift. In support of these contentions defendants cite Askew v. Howard-Cooper Corp., 263 Or. 184, 502 P.2d 210 (1972), a 'defective design' case.

In Askew the plaintiff was injured while greasing a log handling machine manufactured by defendant. Numerous fittings on the machine required daily greasing. To grease those on the boom the plaintiff would lower the boom to a height of 10 feet and then crawl out upon it. In doing so he slipped, fell and was injured. Grease and oil tended to accumulate on the boom and make it slippery. There was evidence that plaintiff could have serviced all of the boom fittings from a platform if he had lowered the boom to a lesser height.

Under these facts this court affirmed the granting of an involuntary nonsuit. In so holding this court (263 Or. at 188, 502 P.2d at 211) stated the following test, quoting from Restatement of Torts 2d § 402A, Comment I (1965):

'In order to be unreasonably dangerous so as to substantiate strict liability on the part of the seller, it must be shown that '(t)he article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. " 1

The court held in Askew that this test was not ...

To continue reading

Request your trial
8 cases
  • Morningstar v. Black and Decker Mfg. Co.
    • United States
    • West Virginia Supreme Court
    • April 13, 1979
    ...1104, 1110 (1976); Hawkins Construction Co. v. Matthews Co., 190 Neb. 546, 566-67, 209 N.W.2d 643, 655 (1973); Rice v. Hyster Co., 273 Or. 191, 204, 540 P.2d 989, 995 (1975); Ellithorpe v. Ford Motor Co., 503 S.W.2d 516, 521 (Tenn.1973); Henderson v. Ford Motor Co., 519 S.W.2d 87, 89 It doe......
  • Shahtout By and Through Shahtout v. Emco Garbage Co., Inc.
    • United States
    • Oregon Supreme Court
    • April 16, 1985
    ...the same reason, the codes have been held not to set a standard of contributory negligence for employees. See Rice v. Hyster Co., 273 Or. 191, 204-05, 540 P.2d 989, 995 (1975), citing prior cases.3 The department consists of the Workers' Compensation Board, the director, and all their assis......
  • Lowrimore v. Dimmitt
    • United States
    • Oregon Supreme Court
    • November 6, 1990
    ...injury to third persons may be found to be a foreseeable result of the officer's continuation of the pursuit. 3 See Rice v. Hyster Co., 273 Or. 191, 205, 540 P.2d 989 (1975). We cannot say, as a matter of law, that there is no evidence of negligence on the part of the pursuing officer. This......
  • Davis v. Pacific Diesel Power Co.
    • United States
    • Oregon Court of Appeals
    • August 20, 1979
    ...or primary cause, rather than merely a contributing or substantial cause, of the deaths and injuries. See, e. g., Rice v. Hyster Co., 273 Or. 191, 540 P.2d 989 (1975); Restatement (Second) of Torts § 431 (1965). Prior to reaching this misunderstanding, the jury had found defendant negligent......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT