Sherrill v. Royal Industries, Inc.

Decision Date11 November 1975
Docket NumberNo. 75-1038.,75-1038.
Citation526 F.2d 507
PartiesNorth Platte SHERRILL, Appellant, v. ROYAL INDUSTRIES, INC., a corporation, and W. R. Grace & Co., a corporation, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

David B. Smith, Lexington, Neb., for appellant.

Harold W. Kay, Milton C. Murphy, North Platte, Neb., for appellees.

Before HEANEY and STEPHENSON, Circuit Judges, and TALBOT SMITH, Senior District Judge.*

STEPHENSON, Circuit Judge.

The central issue raised on this appeal is whether the jury instructions given by the district court1 in this personal injury suit arising out of a farm machinery accident incorrectly stated the law of Nebraska regarding strict liability in tort and assumption of risk and, as a result, prejudicially affected the verdict. We hold that the instructions, taken as a whole, adequately set forth the applicable law and accordingly affirm the jury verdict.

Appellant Sherrill, a farmer, purchased a grain auger from appellee W. R. Grace & Co., a farm implement dealer, in November 1968. The auger was manufactured by appellee Royal Industries, Inc. Appellant assembled the auger himself following its purchase. On the date of the accident, October 28, 1969, he was using it to convey corn from his grain truck to his grain bin. At that time appellant Sherrill was 55 years old and had spent most of his adult life as a farmer. It is conceded that he was generally familiar with grain augers such as the one he purchased from appellees. Appellant had used or observed the use of a similar auger owned by his neighbors over a period of two to three years prior to the accident and had also used the auger in question before the accident.

According to Sherrill's testimony, he was working near the lower end of the auger regulating the flow of the corn from the grain truck into the "hopper" which he had rigged up for use in connection with the auger. For reasons that remain unknown to him, his clothing became caught in the rotating drive shaft and coupling mechanism which were located on the exterior of the auger. His clothing wound tightly around the shaft and was torn from his body. In the process he suffered considerable personal injuries, including the severing of his left hand, the loss of skin from various parts of his body, and various bruises and lacerations.

Subsequently this diversity action was brought in Nebraska federal district court by Sherrill against the manufacturer and distributor of the auger. The case was tried to a jury and submitted on the single theory of strict liability in tort based upon the allegedly defective design of the grain auger. Defendants below alleged that Sherrill was guilty of assumption of risk and was thus barred from recovery. The jury returned a general verdict for the defendant. This appeal followed the district court's denial of Sherrill's motion for a new trial.

All of the issues raised by appellant Sherrill on this appeal relate to the instructions given to the jury by the district court.2 It is alleged that the instruction on assumption of risk was incomplete and should have included further definitional language. In addition, appellant claims that the instructions defining and setting out the elements of strict liability contained language which went beyond the law of Nebraska and was prejudicial to plaintiff below. Finally, appellant asserts that the definition of the term "unreasonably dangerous" given in the instructions was inaccurate. Although certain of the instructions standing alone may appear to be incorrect or ambiguous, it is our view that, taken as a whole and in light of the evidence, they adequately set forth the applicable law and do not constitute reversible error.3

The scope of our review in this case is well defined. As this court stated in Gardner v. Meyers, 491 F.2d 1184, 1188 (8th Cir. 1974), "instructions must be considered as a whole and particular instructions, and requests for instructions, are to be taken in the framework of the entire charge." Similarly, an error in any instruction considered in isolation may be cured by viewing the charge as a whole. Smith v. Wire Rope Corp., 383 F.2d 186, 188 (8th Cir. 1967); Jiffy Markets, Inc. v. Vogel, 340 F.2d 495, 500 (8th Cir. 1965). Furthermore, this court will give "great weight" to the interpretations of state law reached by a trial judge who is familiar with local law. Halvorsen v. Dunlap, 495 F.2d 817, 821 (8th Cir. 1974); Owens v. Childrens Memorial Hospital, 480 F.2d 465, 467 (8th Cir. 1973); Luke v. American Family Mutual Insurance Co., 476 F.2d 1015, 1019 (8th Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 158, 38 L.Ed.2d 105 (1973). With these precepts in mind, we consider the allegations of instructional error made by appellant.

The first contention by appellant that we consider on this appeal is the adequacy of the assumption of risk definition given to the jury by the trial court. No complaint has been made with regard to the specific elements of assumption of risk as given.4 The basic assertion of error relates to the failure of the district court to additionally instruct the jury as requested by plaintiff that inadvertence, momentary inattention, diversion of attention, or involuntary slipping and falling do not constitute assumption of even the most obvious risk.5

This argument is without merit. The instruction quite plainly stated that if it were proved that the plaintiff "knew and appreciated" the danger presented by the revolving shaft and yet voluntarily chose to encounter that danger, he assumed the risk of injury. This is an accurate statement of the Nebraska law. Jensen v. Hawkins Construction Co., 193 Neb. 220, 226 N.W.2d 346, 350-51 (1975); Jeffrey v. Retzlaff, 187 Neb. 372, 191 N.W.2d 436, 437-38 (1971). The issue of assumption of risk was left to the jury in accordance with the Restatement (Second) of Torts § 496D, comment d (1965). The use of the assumption of risk instruction in the instant case and the failure to use appellant's requested instructions did not constitute prejudicial error.

Appellant's next contention is that the jury was misinstructed in Instruction No. 7 as to the issues that needed to be resolved in order to find the defendants or defendant liable for plaintiff's injuries.6 The instruction under examination stated, in relevant part:

If you find that:
* * * * * *
3. Mr. Sherrill was unaware and had no reason to be aware of the claimed defect;
* * * * * *
You may then find the defendants or a defendant liable for the injuries of Mr. Sherrill.

It is asserted that subsection (3) generally and especially the phrase "had no reason to be aware" constituted prejudicial error. We disagree.

In Kohler v. Ford Motor Co., 187 Neb. 428, 191 N.W.2d 601 (1971), the Nebraska Supreme Court adopted in substance section 402A of the Restatement (Second) of Torts. Id. at 606-07. In so doing, that court gave its tacit approval to a set of instructions which included a statement as to the plaintiff's elements of proof in a strict liability action. One of those elements of proof was that "plaintiff was unaware of the claimed defect." Id. at 607. The language from Kohler provided the basis for subsection (3) in the statement of issues. Appellant initially contends that the Nebraska Supreme Court in Hawkins Construction Co. v. Matthews Co., 190 Neb. 546, 209 N.W.2d 643 (1973), reversed its endorsement of that particular instruction.

In Hawkins the court stated flatly, and somewhat parenthetically, that "traditional `contributory negligence' * * is not a defense to a suit in strict tort." 209 N.W.2d at 655. In response to that declaration the editors of the Nebraska Jury Instructions suggested that "it would now apparently be error" to require the plaintiff to prove his unawareness of a defect. Nebraska Jury Instructions 11.20, Comment (1975 Supp.). Appellant thus concludes that reversible error resulted from the use of the "unaware" language in the instant case.

We agree with the proposition that a plaintiff in Nebraska after Hawkins cannot be made to bear the burden of proving, in effect, that he did not assume the risk. However, nothing in the Hawkins decision itself specifically repudiates the use of the "unaware" element from Kohler. Nor was the Kohler decision overruled. The Nebraska Supreme Court may well feel that the use of that phrase as an issue to be resolved in a strict liability case does not conflict with the affirmative defense of assumption of risk. In the absence of any compelling authority to the contrary, we defer to the district court's interpretation of current Nebraska law on that issue.

Furthermore, to the extent that the "unaware" element arguably suggests an improper shift of the burden of proof, we find no reversible error in its inclusion here when the instructions are viewed as a whole. As noted above, the assumption of risk instruction given here was in complete accord with Nebraska law. Thus, even if it were assumed that this one challenged element of the liability issue was technically incorrect after Hawkins, we feel that such error would be harmless at most and was sufficiently cured by the correct and specific assumption of risk instruction. We do not believe that the jury was confused or misled by the inclusion of this language. See Bodtke v. Bratten, 166 Neb. 36, 88 N.W.2d 159, 166 (1958).

Similarly, the addition of the phrase "had no reason to be aware" to the Kohler instruction does not change the result here. Appellant contends that this language erroneously and prejudicially injects an element of contributory negligence into the strict tort/assumption-of-risk framework. While it is true that the standard to be applied in such cases is based upon the actual knowledge of the plaintiff, we are equally mindful that

The plaintiff's own testimony as to what he knew, understood, or appreciated, is not necessarily conclusive. There are some risks as to which no adult

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