Ricker v. Zinser Textilmaschinen GmbH, CIV-2-77-169.

• Decision Date: 03 January 1979
• Docket Number: No. CIV-2-77-169.,CIV-2-77-169.
• Citation: 506 F. Supp. 3
• Parties: Nora RICKER et vir., Plaintiffs, v. ZINSER TEXTILMASCHINEN GmbH, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

506 F. Supp. 3

Nora RICKER et vir., Plaintiffs, v. ZINSER TEXTILMASCHINEN GmbH, Defendant.

No. CIV-2-77-169.

United States District Court, E. D. Tennessee, Northeastern Division.

November 28, 1978.

On Motion for Judgment Notwithstanding Verdict January 3, 1979.

Kyle K. King and K. Kidwell King, Greeneville, Tenn., for plaintiffs.

F. Graham Bartlett and Robert B. Ray, Knoxville, Tenn., for defendant.

MEMORANDUM OPINION

NEESE, District Judge.

The plaintiffs claim the defendant is liable strictly to them without a showing of specific fault and for negligent omissions. The defendant moved for a directed verdict at the conclusion of the plaintiffs' evidence.

There is evidence from which the jury might find that the machine on which Ms. Ricker was working when she was injured was sold by the defendant; that it was defective and unreasonably dangerous to a user when it left the defendant's premises; and that it was in the same condition when Ms. Ricker was injured at the immediately foregoing time. There is evidence also from which the jury might find that the defendant was negligent in failing to design and construct properly such machine, place safety devices thereon and warn intended users of inherent dangers therein.

To establish the liability of the defendant, it was incumbent upon the plaintiffs to prove in addition that the defective condition of such machine proximately caused the plaintiffs' injuries and damages, Browder v. Pettigrew (Tenn., 1976), 541 S.W.2d 402, 405, and that the negligence of the defendant was such a proximate cause, Nashville, C. & St. L. Ry. v. Harrell (1937), 21 Tenn.App. 353, 363-36412, 110 S.W.2d 1032, certiorari denied (1937). However, it is sufficient if it was shown that the conduct of the defendant proved a substantial factor in causing the harm to the plaintiffs. Lancaster v. Montesi (1965), 216 Tenn. 50, 390 S.W.2d 217, 2218.

Ms. Ricker testified that she was injured as she undertook to rethread this machine, when some unidentified (and never discovered) hard and rough substance on its feeder-roller came in contact with her finger(s) and pulled her finger(s) and hand into the machine. She was the only eyewitness to this accident. The expert witness Mr. Sims expressed his professional opinion that the most probable explanation for that which Ms. Ricker said happened to her was that bits of nylon filaments created a hard and rough substance on such roller. The problem is whether the absence of a guard protecting Ms. Ricker from the roller was, nevertheless, a substantial factor in causing the resulting harm to her and her former husband.

The latest discussion by the appellate courts of Tennessee concerning the problem of proximate cause states that this issue is one to be decided "* * * `upon mixed considerations of logic, common sense, justice, policy and precedent.' * * *" Wyatt v. Winnebago Industries, Inc., C.A. Tenn. (1977), 566 S.W.2d 276, 2808, certiorari denied (1978). It appears to this Court that it would be logical and an exercise in common sense for the jury to conclude that, had the guard been in place, Ms. Ricker would have not been injured as seriously as she was.

The Wyatt court, supra, appears also to have reaffirmed the rule for Tennessee that "* * * `proximate cause * * * is * * * that act or omission which immediately causes or fails to prevent the injury; an act or omission occurring or concurring with another which, if it had not happened, the injury would not have been inflicted.' * *" Ibid., 566 S.W.2d at 281.

Although it is not without doubt in this Court's view, the Court has reached the conclusion that it cannot be said as a matter of law, see Lawson v. U-Haul Company, C.A. 6th (1972), 462 F.2d 1337, 13381, that the omission of the defendant to provide the guard for the feeder-roller of the machine was not a substantial cause of preventing Ms. Ricker from sustaining the injury inflicted upon her after the hard and rough substance appeared on the feeder-roller of the machine.

Accordingly, the defendant's motion was overruled.

ON MOTION FOR JUDGMENT NOTWITHSTANDING VERDICT

The jury herein returned a verdict for the plaintiffs Mr. and Mrs. Ricker against the defendant Zinser Textilmaschinen, GmbH, and awarded her damages for $325,000 and him damages of $15,000. The defendant interposed a timely motion for a judgment notwithstanding the verdict, Rule 50(b), Federal Rules of Civil Procedure, or, in the alternative, for a new trial, Rules 59(a), (b), Federal Rules of Civil Procedure.

The grounds urged in support of these motions are the same. All 6 thereof relate to matters involved in the return of the verdict by the jury, to its award of damages, or to the alleged error of the Court in denying the defendant's motion (and renewed motion) for a directed verdict. As a motion for a judgment notwithstanding the verdict serves merely to renew a motion for a directed verdict, O'Neill v. Kiledjian, C.A. 6th (1975), 511 F.2d 511, 5132, the defendant is not permitted now to add to its renewed motion additional grounds, Sulmeyer v. Coca-Cola Company, C.A. 5th (1975), 515 F.2d 835, 8461, certiorari denied (1976), 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d 431.

However, ground no. 4 thereof,^* while alluding to the ultimate action of the jury, relates also to a ground of the defendant's motions for a directed verdict. As the Federal Rules of Civil Procedure are to be construed to secure, inter alia, "* * * the just * * * determination of every action, * * *" Rule 1, Federal Rules of Civil Procedure, it will be considered by the Court on this initial motion as if it were artfully drawn.

In support of this ground, the defendant (by brief) relied mistakenly on Orfield v. International Harvester Co., C.A. 6th (1976), 535 F.2d 959, in which this Court (and judge) directed a verdict for the defendant, see D.C.Tenn. (1975), 415 F.Supp. 404, at the conclusion of the plaintiff's proofs. There, a products liability action was brought against the manufacturer-seller of a bulldozer for injuries sustained by Mr. Orfield, its operator, in the course of a windrowing operation. Mr. Orfield was struck by a tree, because, allegedly, the bulldozer was not equipped with an overhead protective canopy. This Court found from Mr. Orfield's undisputed testimony that he was fully aware before and at the time he was thus struck of the facts that the bulldozer he was operating was not equipped with such a safety device; that a variety of accidents could result, and had resulted, from the use of bulldozers' lacking canopies in the course of windrowing operations; and that he proceeded to engage voluntarily in the windrowing operation, even though he contemplated that the bulldozer, without a canopy, would be dangerous to him in such operations. The Court, under those circumstances, concluded as a matter of law that the bulldozer was not "defective" within the contemplation of the rule of strict liability in tort; and that, even if deemed "defective," the machine was not unreasonably dangerous under that rule, to an extent beyond that which would be contemplated by the ordinarily experienced operator of such bulldozer, such as Mr. Orfield (who had been operating such machines for 30 years). That is an entirely different factual situation from that presented herein. Cf. memorandum opinion herein of November 28, 1978.

For such reason, the motion of the defendant to have the verdict herein and the judgment entered upon it set aside and to have judgment entered in accordance with its motion for a directed verdict, Rule 50(b), supra, hereby is

OVERRULED.

What has been said hereinabove suffices to dispose of the defendant's alternative motion for a new trial on the grounds that the verdict of the jury for the plaintiff is against the clear weight of the evidence, was contrary to the physical facts established in the proof, and that the plaintiff assumed voluntarily the risk of her injury or was guilty of proximate contributory negligence. See again memorandum opinion herein of the immediately foregoing date. Remaining is the ground for a new trial that the awards of damages in the verdict are excessive.

As indicated earlier, there is no showing, beyond mere unsupported conclusions by defendant's counsel, of prejudice, caprice or sympathy on the part of the jury. "* * * In the absence of a showing of bias, passion, or corruption on the part of the jury, excessiveness of the jury verdict is a question primarily addressed to the trial court's discretion. * * *" Stengel v. Belcher, C.A. 6th (1975), 522 F.2d 438, 44416, certiorari granted (1976), 425 U.S. 910, 96 S.Ct. 1505, 47 L.Ed.2d 760, certiorari dismissed (1976), 429 U.S. 118, 97 S.Ct. 514, 50 L.Ed.2d 269. The latest definitive exposition of the rule in Tennessee regarding the excessiveness of an award of damages in a personal injury action seems to have emanated 35 years ago from the late Chief Justice Hamilton S....