Vanskike v. ACF Industries, Inc.

Citation665 F.2d 188
Decision Date09 November 1981
Docket NumberNos. 80-1717,s. 80-1717
PartiesWarren VANSKIKE and Lucille Vanskike, his wife, Appellees, v. ACF INDUSTRIES, INCORPORATED f/k/a The American Car and Foundry Company, a corporation, Appellant. Union Pacific Railroad Company, a corporation, and St. Louis-San Francisco Railroad Company, a corporation. Warren VANSKIKE and Lucille Vanskike, his wife, Appellees, v. ACF INDUSTRIES, INCORPORATED f/k/a The American Car and Foundry Company, a corporation, Union Pacific Railroad Company, a corporation, Appellant. St. Louis-San Francisco Railroad Company, a corporation. Warren VANSKIKE and Lucille Vanskike, his wife, Appellees, v. ACF INDUSTRIES, INCORPORATED f/k/a The American Car and Foundry Company, a corporation, Union Pacific Railroad Company, a corporation, St. Louis-San Francisco Railroad Company, a corporation, Appellant. Warren VANSKIKE, Appellant, Lucille Vanskike, v. ACF INDUSTRIES, INCORPORATED f/k/a The American Car and Foundry Company, a corporation, Appellee. Union Pacific Railroad Company, a corporation, and St. Louis-San Francisco Railroad Company, a corporation. Warren VANSKIKE, Lucille Vanskike, Appellant, v. ACF INDUSTRIES, INCORPORATED f/k/a The American Car and Foundry Company, a corporation, Appellee. Union Pacific Railroad Company, a corporation, and St. Louis-San Francisco Railroad Company, a corporation. to 80-1721.
CourtU.S. Court of Appeals — Eighth Circuit

James F. Duncan, argued, William T. Smith, III, A. Mary Sterling, Kansas City, Mo., for appellant Union Pacific Railroad Co.

John W. Cowden, argued, Karl F. Schmidt, Mark E. Johnson, Theresa L. F. Levings, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, Mo., for ACF Industries.

Glenn A. Burkart, argued, Mann, Walter, Burkart, Weathers & Walter, Springfield, Mo., for appellant St. Louis-San Francisco Railway Co.

Thomas Strong, Mathew W. Placzek, Strong & Placzek, P.C., Springfield, Mo., for appellees and appellants, Warren Vanskike and Lucille Vanskike; Watson, Ess, Marshall & Enggas, Kansas City, Mo., of counsel.

Before HEANEY, STEPHENSON and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Defendants ACF Industries, Inc. (ACF), Union Pacific Railroad Co. (Union Pacific) and St. Louis-San Francisco Railway Co. (Frisco) appeal from judgments 1 totalling $904,000 against them in a strict liability case involving a trailer hitch. Plaintiffs Warren and Lucille Vanskike cross-appeal the directed verdict denying as a matter of law their claims for punitive damages. For the reasons discussed below, we affirm the liability findings as to all three defendants, reverse the damages award, and remand the case for a new trial on the damages issue only.

This is a products liability case involving a Model A trailer hitch such as that shown in Appendix. The Model A trailer hitch is a mechanical device mounted on a railroad flatcar. Its purpose is to hold in place on a flatcar a highway truck semi-trailer, while the semi-trailer is being transported by the railroad (commonly known as piggyback service). The hitch is in the fully raised position when it is attached to a semi-trailer. It is in the fully lowered position when a semi-trailer is being driven on or off the flatcar or the flatcar is travelling empty.

The hitch and flatcar UP Car No. 53805 on which the hitch was mounted were designed and manufactured by ACF, owned by Union Pacific, and in the possession of Frisco at the time of the accident.

Warren Vanskike was employed by the Frisco Transportation Co. (Frisco Transportation), a subsidiary of Frisco. Frisco contracted with Frisco Transportation for the services required to load and unload semi-trailers on railroad cars in piggyback service. Warren Vanskike was loading a semi-trailer on a flatcar at the Frisco piggyback yard in Springfield, Missouri, when he was injured.

The loading operation being performed by Vanskike and a co-worker at the time of the accident involved the following sequence of events. A truck tractor is used to pull the semi-trailer onto the flatcar. The semi-trailer is placed on the flatcar with the fifth wheel kingpin of the semi-trailer over the hitch. The truck tractor is driven off the flatcar, leaving the front of the semi-trailer supported by its dolly wheels. The fifth wheel kingpin of the semi-trailer is then attached to the trailer mounting plate of the hitch by elevating the hitch and securing the kingpin with the jaws of the trailer mounting plate. In the fully elevated position, the hitch lifts the front end of the semi-trailer off its dolly wheels.

The yoke is attached to the bottom of the vertical strut by roller pins. Each roller pin assembly consists of a roller pin, roller, roller bearing, and retaining ring. A roller Vanskike and his co-worker Louis Tuter were elevating the hitch under a semi-trailer which had been placed on the flatcar. Tuter was facing the left end of the hitch, using an electrically powered wrench to rotate the elevating screw. Vanskike was to his right. The rotation of the elevating screw caused the yoke to move toward Tuter. As the bottom of the vertical strut was drawn towards Tuter by the yoke, the trailer mounting plate rose from a fully lowered to an elevated position. Vanskike was squatting, reaching upward and turning with his hand the screw used to close the mounting plate jaws around the trailer kingpin.

pin is inserted through the holes in the lower end of each leg of the vertical strut. A roller and roller bearing are assembled on each roller pin within each leg of the vertical strut. The roller pin is then inserted through the hole in the end of the yoke, and the retaining ring is attached to hold the entire assembly in place.

The hitch started rising but jammed before the vertical strut was in a fully raised position. Vanskike could see that one of the yoke arms was twisted and had come about halfway off the pin. In an effort to tap the arm back onto the pin, Vanskike reached under the vertical strut and struck the arm with a mechanic's hammer. Both arms came off the pins. 2 The hitch immediately fell to the lowered position. The vertical strut retracted and caught Vanskike's arm between the upper surface of the vertical strut and the lower surface of the diagonal strut. Tuter attempted to elevate the hitch off Vanskike's arm. Although the elevating screw would rotate, the hitch would not elevate because the yoke was no longer connected to the lower end of the vertical strut by the two roller pins. As a result, Vanskike's left arm was crushed and was later amputated between the shoulder and the elbow.

The Vanskikes brought a civil action for damages. The initial and amended complaints alleged multiple theories of liability, but at trial all theories were abandoned except strict liability in tort against ACF and Union Pacific and Federal Employers Liability Act (FELA) 3 negligence against Frisco. The claim of defect revolved around ACF's design which used the retaining rings and the railroads' lack of maintenance and inspection which allowed the retaining rings to come off and remain off the roller pins. Cross-claims for contribution by ACF against each of the railroads and by each of the railroads against ACF were also tried.

Following a fourteen-day trial, the jury returned a verdict in favor of Warren Vanskike and against all defendants in the sum of $903,000, and a verdict in favor of Lucille Vanskike and against Union Pacific and ACF in the sum of $1,000. On the cross-claims among defendants for apportionment of fault on Warren Vanskike's claims, the jury found ACF to be 30% at fault, Union Pacific to be 30% at fault, and Frisco to be 40% at fault. On the cross-claims between Union Pacific and ACF for apportionment of fault on Lucille Vanskike's claims, the jury found Union Pacific and ACF each 50% at fault. Judgment was entered on the verdict. This appeal followed.

I. SUBMISSIBLE CASE

ACF contends that the Vanskikes failed to make a submissible case against ACF on their strict liability theory.

Citing Restatement (Second) of Torts § 402A (1965) (hereinafter Restatement) as consistent with Missouri law on design defects, ACF states that the Vanskikes had to prove the following facts: (1) the hitch was, at the time it was sold, in a defective condition unreasonably dangerous for use by Vanskike; (2) the hitch reached Vanskike without substantial change from the condition in which it was sold; (3) the accident was proximately caused by the alleged design defect; and (4) the hitch was being used at the time of the accident in a manner First, the duty of care in design should be "consonant with the state of the art." Polk v. Ford Motor Co., 529 F.2d 259, 264 (8th Cir.), cert. denied, 426 U.S. 907, 96 S.Ct. 2229, 48 L.Ed.2d 832 (1976) ("second collision" doctrine), citing Larsen v. General Motors Corp., 391 F.2d 495, 502-03 (8th Cir. 1968). Dr. James Somerset, a professor of mechanical engineering, testified that the hitch was defectively designed so that it would not hold retaining rings at all. In his view, the most significant defect in the hitch was that the yoke was placed outside the legs of the vertical struts. If the yoke had been placed inside, there would have been no problem in restraining the roller pins. If, however, the yoke was to be outside, a better retaining system was required. In the mid-1950's when the hitch was designed 4 there were at least three devices available to keep the pins in place securely, and they cost just a few dollars apiece. At least one such device was in common use as early as 1929. If either method had been used to keep the pins in place, the hitch would not have collapsed. Therefore, the Vanskikes did present evidence that the hitch was in a defective condition at the time it was sold.

reasonably anticipated by ACF. Missouri does follow the Restatement. See Blevins v. Cushman Motors, 551 S.W.2d 602, 606 (Mo.1977) (banc); Keener v. Dayton...

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