Rodrigues v. Ripley Industries, Inc.

• Citation: 507 F.2d 782
• Decision Date: 25 November 1974
• Docket Number: Nos. 74-1065,74-1072,s. 74-1065
• Parties: Joseph RODRIGUES, Plaintiff-Appellant, v. RIPLEY INDUSTRIES, INC., Defendant-Appellee. Joseph RODRIGUES, Plaintiff-Appellee, v. RIPLEY INDUSTRIES, INC., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 782

507 F.2d 782

Joseph RODRIGUES, Plaintiff-Appellant, v. RIPLEY INDUSTRIES, INC., Defendant-Appellee.

Joseph RODRIGUES, Plaintiff-Appellee, v. RIPLEY INDUSTRIES, INC., Defendant-Appellant.

Nos. 74-1065, 74-1072.

United States Court of Appeals, First Circuit.

Argued Oct. 9, 1974.

Decided Nov. 25, 1974.

Vincent A. Wenners, Jr., Manchester, N.H., with whom Craig, Wenners, Craig & McDowell, Manchester, N. H., was on brief, for Joseph Rodrigues.

W. Wright Danenbarger, Manchester, N.H., with whom Susan B. Monson and Wiggin, Nourie, Sundeen, Pingree & Bigg, Manchester, N.H., were on brief, for Ripley Industries, Inc.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

This is a consolidated appeal by plaintiff Rodrigues and defendant Ripley from a judgment in the amount of $15,000 pursuant to a jury verdict. Rodrigues was injured when a plastic injection heel molding machine designed and manufactured by Ripley and owned by its subsidiary, Security Heel Company, Rodrigues' employer, closed on his hand causing permanent and total disability. Rodrigues seeks a new trial, alleging errors by the trial court and challenging the adequacy of the jury's verdict, while Ripley attacks the sufficiency of the evidence to support a finding of liability against it. We affirm in all respects.

We can dispose of the latter claim in short order. Plaintiff's expert testified to three separate design defects in the molding machine, ¹ and expressed the opinion that the instructional materials provided with the machine were inadequate. Defendant sought to minimize the importance of these alleged defects. It also sought to prove that the accident could not have occurred had Security Heel not removed a safety gate from the machine, but there was evidence from which the jury could have concluded that this removal was a foreseeable possibility which did not supervene Ripley's negligence. ² We are not prepared to hold that the evidence and every legitimate inference that can be drawn therefrom, Bayamon Thom McAn v. Miranda, 409 F.2d 968, 973 (1st Cir. 1969), viewed in the light most favorable to plaintiff, was not sufficiently substantial to justify the court in allowing the case to go to the jury. Magnat Corp. v. B. & B Electroplating Co., 358 F.2d 794, 797 (1st Cir. 1966). The court properly denied Ripley's motion for a directed verdict.

Turning to plaintiff's appeal, we dealt comprehensively with a claim that a jury verdict was excessive in Boston and Maine R.R. v. Talbert, 360 F.2d 286 (1st Cir. 1966). ³ No reason appears why the standards we developed in that case should not apply here. See Caskey v. Village of Wayland, 375 F.2d 1004, 1008 (2d Cir. 1967). Making a detailed appraisal of the evidence bearing on damages in accordance with the Supreme Court's practice in Grunenthal v. Long Island R.R., 393 U.S. 156, 89 S.Ct. 331, 21 L.Ed.2d 309 (1968), we find that Rodrigues claimed medical expenses of $5,047.95, while Ripley suggested that only $4,276.95 of this amount was attributable to the accident in question. Rodrigues had been earning over $10,000 yearly and had not worked since the accident, a period of nearly three years. He planned to work until age 65, eleven years hence. However, his doctor testified that within a year of the accident he had reached the endpoint of his recovery, converted his dominant hand to his left, and was capable of gainful employment. In fact, he was reoffered his old job at the molding plant soon after the accident and this offer was repeated on the witness stand by the assistant to the plant manager, who spoke very highly of Rodrigues. Thus the jury could have concluded that Rodrigues had failed to mitigate and that his allowable damages for lost earnings and out-of-pocket expenses were under $15,000.

Rodrigues notes that a new trial will be granted where a verdict closely approximates the amount of special damages claimed by a plaintiff who has suffered serious injury, since the jury had evidently failed to heed the court's instructions on pain and suffering. See e.g., Brown v. Richard H. Wacholz, Inc., 467 F.2d 18 (10th Cir. 1972); Schieck v. Duluth Heating and Sheet Metal Supply Co., 53 F.R.D. 401 (D.Minn.1971). However, we must bear in mind that New Hampshire adheres to a rule of comparative negligence, N.H. Rev.Stat.Ann. 507:7-a (Supp.1973), under which the jury may diminish its verdict up to 50% If it concludes that the plaintiff's negligence was a partial cause of his injury. See Glover v. Daniels, 310 F.Supp. 750, 752 (N.D.Miss.1970). There was ample evidence from which the jury could have determined that Rodrigues was partially at fault in his mishap. ⁴ We cannot know whether the jury in fact made this determination absent a special verdict or a general verdict with interrogatories under Fed.R.Civ.P. 49, ⁵ but we think it is fair to presume that the verdict is predicated upon such a finding. Cf. Railway Express Agency v. Little, 50 F.2d 59, 60 (3d Cir. 1931). Thus this verdict may reflect an award of over $15,000 for general damages. Rodrigues experienced severe pain and spent more than a month in the hospital, where he underwent a series of six operations. Needles were inserted into his hand in an effort, ultimately unsuccessful, to save the stumps of his fingers from gangrene. He had trouble sleeping, and is unable to perform certain everyday operations like tying his shoelaces. His sister characterized his hand as 'repulsive.' He has given up former hobbies. Nevertheless, although such an amount for general damages may be low in light of plaintiff's suffering and disfigurement, we do not find it shockingly so. See, e.g., June T., Inc. v. King, 290 F.2d 404 (5th Cir. 1961); Johnson v. United States, 271 F.Supp. 205 (W.D.Ark.1967); Missouri Pacific R.R. v. Handley, 341 S.W.2d 203 (Tex.Civ.App.1969). It was not a manifest abuse of discretion not to order a new trial here.

Rodrigues next advances a series of allegedly erroneous rulings by the trial court as grounds for a new trial. We note at the outset that a motion for a new trial is addressed to the sound discretion of the trial court and its decision will be reversed only where abuse of discretion is shown. Dumas v. MacLean, 404 F.2d 1062, 1065 (1st Cir. 1968). Ripley contends that plaintiff has waived these objections by failing to include them in his notice of appeal, but we need not pass on this contention since we find plaintiff's claims without merit.

Rodrigues first alleges that the court below erred in failing to submit his claim of strict liability in tort to the jury. Even if this was error we doubt that it was prejudicial. The jury concluded on the evidence that Ripley had designed the molding machine negligently. 'Since proper design is a matter of reasonable fitness, the strict liability adds little or nothing to negligence on the part of the manufacturer.' W. Prosser, Torts 99 n. 72 (1971). As Rodrigues himself concedes, the two claims merge. The New Hampshire comparative negligence statute applies to claims for strict liability in tort, Cyr v. B. Offen & Co., 501 F.2d 1145 (1st Cir. 1974). ⁶ Rodrigues could not have benefitted from the presentation of an alternative theory. Indeed, insofar as the comparative apportionment of blame is concerned, if the jury made and distinction at all between the two theories it could well have concluded that Ripley was less blameworthy in falling short of the more demanding strict liability measure of conduct than in designing the machine carelessly in contravention of the negligence standard. Hence we doubt that the exclusion of the strict liability theory worked to Rodrigues' disadvantage.

Rodrigues next attacks the court's exclusion of proffered testimony that the wiring diagram showed the molding machine was designed with a 'momentary contact' emergency stop button. Such a switch must be held down continuously to keep the machine from operating and is consequently less safe than a 'maintain contact' switch. The evidence was excluded on the ground that Rodrigues had failed to include this claim in his pretrial enumeration of alleged defects. The pretrial statement 'controls the subsequent course of the action,' Fed.R.Civ.P. 16, and the trial court is endowed with discretion to exclude non-conforming evidence. See, e.g., Wiggins v. City of Philadelphia, 331 F.2d 521 (3d Cir. 1964). Rodrigues argues that his claim in...