Smith v. Wire Rope Corporation of America, Inc.

• Decision Date: 28 August 1967
• Docket Number: No. 18719,18720.,18719
• Citation: 383 F.2d 186
• Parties: Napoleon SMITH and Dorothy Mae Smith, Appellants, v. WIRE ROPE CORPORATION OF AMERICA, INC., Appellee (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

383 F.2d 186 (1967)

Napoleon SMITH and Dorothy Mae Smith, Appellants, v. WIRE ROPE CORPORATION OF AMERICA, INC., Appellee (two cases).

Nos. 18719, 18720.

United States Court of Appeals Eighth Circuit.

August 28, 1967.

Henry Woods, Little Rock, Ark., for appellants; Sidney S. McMath and McMath, Leatherman, Woods & Youngdahl, Little Rock, Ark., on the brief.

J. W. Barron, Little Rock, Ark., for appellee; Rose, Meek, House, Barron, Nash & Williamson, Little Rock, Ark., on the brief.

Before VOGEL, Chief Judge, and VAN OOSTERHOUT and GIBSON, Circuit Judges.

VOGEL, Chief Judge.

Appellants, Napoleon Smith and his wife, Dorothy Mae Smith, commenced two actions against defendant-appellee, Wire Rope Corporation of America, Inc., claiming that the appellee's defective manufacture of wire cable was the cause of very severe personal injuries suffered by appellant Napoleon Smith. At all times relevant herein Napoleon Smith was an employee of S. O. G. of Arkansas, a construction company which was building a lock and dam complex on the Arkansas River. Defendant-appellee, Wire Rope Corporation, supplied to the S. O. G. company certain wire cable. The wire cable in question was being used as a transverse cable on a gantry crane. After being in use five days, the cable broke, causing a concrete piling being carried by the crane to swing free and severely injure appellant Napoleon Smith.

In the suits brought against the appellee, two independent bases of liability were urged by the appellants, one sounding in tort, alleging negligence in the design, manufacture and inspection of the wire rope, and the second in contract, claiming breach of manufacturer's warranties. The cases were consolidated and tried to a jury, which returned a verdict for defendant-appellee. This appeal followed. The sole issue raised here is the propriety of the trial court's modification of Arkansas Model Jury Instruction No. 1001. We affirm.

The question is a narrow one for, although appellants were proceeding on two theories of liability, one in tort and one in contract, they claim no alleged impropriety in the instructions insofar as they involved the contract or breach of warranty cause of action. The issue before us is concerned with the tort or negligence action and the instructions therein. The challenged instruction provided:

"You are instructed that a manufacturer of a wire rope has the duty to use ordinary care in the selection of materials used therein, in the manufacturing thereof and to inspect it and to test it so as to make it reasonably safe when used in the normal and ordinary way and in order to protect those who are in the area of its use from unreasonable risk or harm while it is being used for its intended purpose or while it is being used for any purpose which should reasonably be expected by the manufacturer. Ordinary care on the part of the manufacturer means that degree of skill and care ordinarily possessed and used by manufacturers doing the same or similar work." (Emphasis supplied.)

With the exception of the italicized portion, the foregoing instruction was drawn verbatim from Arkansas Model Jury Instruction No. 1001. The italicized portion was added by the trial court. To this modification by addition the appellants took exception as follows:

"Mr. Woods: The plaintiffs object to the inclusion of the phrase `when used in the normal and ordinary way\' in the Court\'s Instruction No. 14. This is a modification of AMI 1001 which the plaintiffs feel is not justified since a matter of abnormal use is a matter which is covered in other instructions. If the abnormal use of the product by S. O. G. caused the injuries to the plaintiff, then this is a matter of proximate causation and is also a matter of foreseeability, which is covered in other instructions and indeed in this very instruction. As the instruction is given, it would appear that abnormal use or use out of the normal way by the defendant employer would be an absolute defense to plaintiffs\' cause of action. In truth and in fact, there could be concurring negligence. The abnormal use of the wire rope in question could concur with a defective manufacture of the rope in question, and the plaintiff\'s injuries could result from such concurrent negligence. As the Instruction is here framed, abnormal use is made an absolute defense to the plaintiffs\' cause of action, and therefore the Instruction is erroneous and we request that the Instruction be given in conformity with AMI 1001." (Emphasis supplied.)

In order for the appellants to recover against the Wire Rope Corporation on either the breach of warranty theory or the tort theory, it was necessary to establish that the cable was in fact defectively manufactured. This was attempted through the presentation of expert testimony. Appellee countered by producing other expert testimony to the effect that there was nothing wrong in the inherent...