Turner v. Manning, Maxwell & Moore, Inc.

• Decision Date: 05 September 1975
• Docket Number: No. 740608,740608
• Citation: 216 Va. 245,217 S.E.2d 863
• Court: Virginia Supreme Court
• Parties: , 17 UCC Rep.Serv. 1200 George J. TURNER v. MANNING, MAXWELL & MOORE, INC., et al. Record

Page 863

217 S.E.2d 863

216 Va. 245, 17 UCC Rep.Serv. 1200

George J. TURNER v. MANNING, MAXWELL & MOORE, INC., et al.

Record No. 740608.

Supreme Court of Virginia.

Sept. 5, 1975.

Melvin I. Friedman, New York City (Arthur B. Davies, III, Eric G. Peters, Lynchburg, Kreindler & Kreindler, New York City, Davies, Smith & Peters, Lynchburg, on brief), for plaintiff in error.

Robert E. Glenn, Roanoke, S. J. Thompson, Jr., Henry M. Sackett, III, Lynchburg (Richard B. Kaufman, Roanoke, Mark E. Feldmann, Charlottesville, Leighton S. Houck, Mosby G. Perrow, III, Lynchburg, Eggleston & Glenn, Roanoke, Caskie, Frost, Hobbs & Hamblen, Edmunds, Williams, Robertson, Sackett, Baldwin & Graves, Lynchburg, on briefs), for defendants in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COCHRAN, Justice.

On September 19, 1969, George J. Turner, an employee of Glamorgan Pipe and Foundry Company, in Lynchburg, was seriously injured when he was struck on the head by a hoist which became disengaged and fell while being operated by two of his fellow employees.

Turner filed an amended motion for judgment for damages against the manufacturer, Manning, Maxwell & Moore, Inc. (Manning), its successor, Dresser Industries, Inc. (Dresser), and a distributor, Barker-Jennings Corporation (Barker), alleging negligent design, manufacture, inspection, testing and sale of the hoist by Manning, negligent failure to warn of known dangerous characteristics of the hoist by Manning, Dresser and Barker, and breach of warranties of fitness, safety and merchantability by Manning and Barker. Each defendant denied liability, and, after pre-trial proceedings had been concluded, a jury trial was held.

At trial motions to strike the plaintiff's evidence, made at the conclusion of such evidence, were denied, but, when renewed at the conclusion of all the evidence, were granted. In sustaining the motions, the trial court ruled that Turner had failed to prove negligence in the design and manufacture of the hoist, that he had failed to prove that the hoist was dangerous for its intended use at the time of its purchase, so that there was no duty to warn, and that he had failed to prove breach of any implied warranty of merchantability or fitness. Turner, assigning numerous errors, has appealed the final order entered February 28, 1974, awarding judgment for the defendants. The defendants have assigned various cross-errors.

At the time of the accident, Turner was working in a cupola, a cylindrical structure lined with brick in which scrap metal is melted. This cupola and another that stands beside it are used on alternating days, so that one may be used while the other is being cleaned. There is a hole in the floor of the cupola through which the molten metal flows. Metal doors, weighing more than 800 pounds, in the bottom of the cupola, are dropped down to permit coke and other debris to fall out after the melting operation has been concluded for the day. Occasionally, a 'freeze-up' occurs when the molten metal bundles cool and fuse to each other or to copper nozzles which extend into the cupola. At such times the cupola is shut down and cooled, and workmen then enter and break loose and remove the fused metal.

In 1960 Glamorgan began to use a 'Budgit' portable half-ton capacity electric hoist, weighing 75 pounds, for the purpose of closing the doors in the bottom of the cupola. The hoist was moved from one cupola to the other and received such rough treatment that another was purchased in 1962, in order that one would be regularly available while the other was being repaired.

On the day of the accident, Turner and two other Glamorgan employees, James Torrence and Jack Williams, were sent to clean up the cupola where a freeze-up had occurred the preceding night. Torrence was stationed at the top of the cupola to activate the hoist. Turner and Williams were below him, in the cupola, attempting to move blocks of iron and bundles of compressed scrap metal. They took turns hooking the lower hook of the hoist into a crack or crevice of the metal or under a bundle of material and signaling Torrence to activate the hoist so that the metal could be lifted and removed through the hole in the floor. The upper hook, by which the hoist was suspended from a swinging arm or boom, was 'open-throated', that is, it had no safety latch across its mouth. As Turner stood on a ladder, Williams attached the lower hook to one of the blocks of metal and gave the signal to life. Torrence activated the hoist. Immediately thereafter, Turner was injured when the lower hook broke through or slipped off the metal, thereby dislodging the hoist from its boom.

At trial, Turner adduced evidence from which the jury could have found that the hoist which fell on Turner was manufactured by Manning and purchased by Glamorgan in 1960 from Barker. We will assume, without deciding, that the trial court correctly ruled that Manning, a New Jersey corporation dissolved in 1964, was properly before the court, and that Dresser, which had acquired the assets of Manning in 1964, had assumed any products liability of Manning to Turner.

Turner called as an adverse witness Howard C. Stevens, Jr., Dresser's Chief Engineer for Hoist Products, who had previously been employed as an engineer by Manning. Stevens testified that it was possible for an open-throated upper hook to disengage accidentally from its support if the load on the lower hook was suddenly released, causing 'some fantastic backlash.' He further testified, however, that it would take 'many, many times' the rated capacity load of 1000 pounds to cause this kind of backlash; that there was only a 'very remote' possibility of this occurring; and that it could not occur under normal use of the hoist.

The uncontradicted evidence shows that until the date of the accident, and for some time thereafter, the open-throated hook was standard equipment on the Manning hoist, but that at least as early as 1958 Manning began to offer upper and lower hooks with safety devices as optional items at an additional charge of $1.60 each.

Turner undertook to prove, through his own testimony and that of his witnesses, Willis Driskill, James Vest and James Torrence, that the metal to which Williams attached the lower hook was loose and not frozen. Thus, Torrence, while declining to testify that the metal was not frozen, asserted that the hoist 'moved the bundle and the bundle twisted.' Driskill, Turner's foreman, testified that the bundles (engine blocks, car bodies, and pig iron) in the area of the cupola where Turner was injured were not frozen together. However, he admitted that he had sent Turner to the cupola to clean up a freeze-up, a condition which he defined generally as 'just one mass of iron', and that some of the metal could have been 'frozen together or melted together.' Vest, Glamorgan's Melting Superintendent, testified, directly contrary to his testimony given in discovery deposition, that the hoist was not used to free frozen metal. He conceded that the bundles of metal in the cupola could have weighed as much as 800 pounds each.

Turner testified that the metal in a freeze-up is generally 'stuck together'; that, when the hoist would not pull the metal loose, if the metal 'didn't break, you just quit and try to hook somewhere else'; and that, when he went into the cupola, there were metal blocks and bundles of compressed scrap metal partially melted and sticking together. He further stated that Williams attached ¹ the lower hook to a 'pig', which Turner described as a bundle of compressed metal weighing 300 to 500 pounds, and signaled to Torrence to activate the hoist. Although he testified that the metal block was 'stuck', Turner maintained that 'it moved' and the lower hook 'slipped off', a statement apparently in conflict with his testimony in a discovery deposition that the 'piece of iron . . . wouldn't give.' Turner admitted, however, that his memory was probably clearer when he testified on deposition. Moreover, at trial, Turner explained:

'A. I didn't mean the whole big piece come up, but a small piece of the bundle, just a small piece, not the big piece.

'Q. When it came a loose, then the hook slipped off?

'A. The hook slipped off.

'Q. And that's when the hoist('s upper hook) disengaged, is that correct'

'A. Yes, sir.

'A. The whole block didn't move, but the piece you had it hooked to broke?

'A. Yes, sir.'

Regardless of which version is accepted, Turner's testimony establishes that the hoist was being misused at the time of the accident. Whether or not the metal moved, it was, by his testimony, 'struck', so that it must have been frozen, at least in part, either to the cupola or to other metal. Turner is bound by this testimony. Watson & Chalk v. First Nat. Bank, 213 Va. 687, 689, 194 S.E.2d 749, 751 (1973); Massie v. Firmstone, 134 Va. 450, 114 S.E. 652 (1922).

Charles J. Manney, a mechanical engineer presented by Dresser as an expert on hoists, testified without contradiction that use of the hoist to dislodge frozen metal was misuse because the weight of the load was unknown and might exceed the capacity of the hoist, and the attachment of the lower hook to the load was insecure. He further testified that there is no danger of disengagement when the hoist is suspended from an overhead support by an open-throated hook; that the one-half ton Budgit hoist with an open-throated hook suspended from a secure support, is reasonably safe for the purpose for which it was intended; and that from 1943 until the date of the accident, the accepted standard applicable to the hoist industry was American National Standard B30.2--1943, which did not require safety latches on hooks.

Manney and Stevens testified that prior to the accident it was the industry custom to offer this kind of hoist with open-throated hooks as standard equipment and safety hooks as optional equipment. Manney also testified...