Warner v. Kewanee Machinery & Conveyor Company

• Decision Date: 16 June 1969
• Docket Number: No. 18667.,18667.
• Citation: 411 F.2d 1060
• Parties: Donald L. WARNER, by his next friend, James A. Warner, Jr., and James A. Warner, Jr., Plaintiffs-Appellees, v. KEWANEE MACHINERY & CONVEYOR COMPANY, a foreign corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

411 F.2d 1060 (1969)

Donald L. WARNER, by his next friend, James A. Warner, Jr., and James A. Warner, Jr., Plaintiffs-Appellees, v. KEWANEE MACHINERY & CONVEYOR COMPANY, a foreign corporation, Defendant-Appellant.

No. 18667.

United States Court of Appeals Sixth Circuit.

June 16, 1969.

COPYRIGHT MATERIAL OMITTED

Donald E. Miller, Detroit, Mich., Alexander, Buchanan & Conklin, Detroit, Mich., on brief, for defendant-appellant.

William H. Goodman, Detroit, Mich., Goodman, Eden, Robb, Millender, Goodman & Bedrosian, Paul A. Rosen, Detroit, Mich., on brief, for plaintiffs-appellees.

Before O'SULLIVAN, PECK and COMBS, Circuit Judges.

PECK, Circuit Judge.

This action, which resulted in a jury verdict and judgment for the plaintiff in the District Court, grew out of an accident in which the plaintiff, then 12 years of age, was injured. The suit was brought on his behalf by his father as his next friend, and on behalf of the father individually. Herein, however, the boy will usually be referred to as the "plaintiff," and the defendant-appellant as the "defendant."

At the time of the accident straw was being loaded into a haymow with the aid of a device manufactured and marketed by the defendant and known as a Kewanee Portable Elevator. In the use of such a device, bales of straw are placed on the bottom, or loading end, of the elevator and paddles standing vertically from the axis of the elevator push the bales up and into the haymow (or other receiving area). The paddles are connected to chains resting on the floor of the elevator and were in this instance motivated by a power take-off from a tractor.

Shortly prior to the accident some difficulty developed because of the position of the bales at the lower or loading end of the elevator, and the tractor was turned off to permit adjustment. Several boys were engaged in the operation, and while the elevator was stopped one of the older boys who had been in the haymow sought to change places with plaintiff and another boy who had been on the ground. As the record indicates was frequently if not customarily done, this was accomplished by using the elevator as a ladder or stairway, with the paddles serving as steps. The injuries complained of were suffered when the device was reactivated before plaintiff had stepped into the haymow and when his foot became caught underneath a paddle. He was dragged to the top of the elevator, and his leg was pulled around and underneath the elevator itself resulting in his injury. As a result of the accident plaintiff lost his left leg from a point below the knee.

Appellate review of this case presents unusual complications by reason of the fact that, on the one hand, while defendant made a motion for a directed verdict at the close of plaintiff's case it neither renewed that motion nor subsequently moved for judgment notwithstanding the verdict,¹ and, on the other hand, by the fact that plaintiff not only attempted to bolster a weak case during the presentation of defendant's case, but actually developed points upon which he now primarily relies during cross-examination of defendant's witnesses.

In considering the significance of defendant's failure to renew its motion for a directed verdict or to later make a motion for judgment NOV, it must be kept in mind that defendant-appellant raises questions involving the legal sufficiency of the evidence. As Professor Moore points out, however, that question "is open only when the motion for directed verdict is renewed at the close of the trial." 5 J. MOORE, FEDERAL PRACTICE ¶ 50.05(1), at 2322; Gebhardt v. Wilson Freight Forwarding Co., 348 F.2d 129 (3d Cir. 1965); American Nat'l Bank & Trust Co. v. Dean, 249 F.2d 82 (6th Cir. 1957); Minnehaha County v. Kelley, 150 F.2d 356 (8th Cir. 1945). Professor Moore goes on to state (supra):

"For purposes of appeal, a motion for a directed verdict is necessary to raise the legal question as to whether the case should have been submitted to the jury. Whether the verdict is authorized by the evidence is a question which should be raised at the trial. If the sufficiency of the evidence goes unchallenged, no error on appeal can be attributed to the trial judge for submitting the case to the jury, for federal appellate courts do not directly review jury verdicts, but only rulings of the judge which may have affected the verdict. In this respect, it may be said that the necessity of a motion for a directed verdict, to raise the legal question as to the sufficiency of the evidence, is emphasized under the new Rules." (Citing Baten v. Kirby Lumber Corp., 103 F.2d 272 (5th Cir. (1939)).

In accordance with this rule of law we again hold that since the defendant did not renew its motion for a directed verdict at the close of the entire testimony, "the claimed insufficiency of the evidence is not before us." American Nat'l Bank & Trust Co., v. Dean, 249 F. 2d at 83. However, the statement of this conclusion of law leaves open the more difficult question as to what it encompasses. Read literally the rule would seem to preclude even a consideration as to whether any evidence had been received on an essential element of the plaintiff's case, but we interpret the rule to provide as a test the question of whether plaintiff's evidence considered in the light most favorable to him established a prima facie case, or one properly submissible to a jury.

We parenthetically observe that even viewed in such most favorable light to him plaintiff's evidence in his case in chief was insufficient to create a jury issue. However, since the defendant chose to proceed rather than to rest at that point, the question becomes whether so viewed there is evidence in the entire record to create a jury question. Dindo v. Grand Union Co., 331 F.2d 138, 141 (2d Cir. 1964). In so framing the issue, the word "evidence" must be construed as meaning evidence properly received, and that construction places on us the obligation of considering the Court's rulings on objections to evidence offered by the plaintiff. SeePruett v. Marshall, 283 F.2d 436 (5th Cir. 1960); United States v. Mountain State Fabricating Co., 282 F.2d 263 (4th Cir. 1960); 5 J. MOORE, FEDERAL PRACTICE ¶ 50.05 (1), at 2323; BARRON & HOLTZOFF, FEDERAL PRACTICE & PROCEDURE § 1081, at 430.

Before passing to a consideration of the trial court's rulings on objections to specific areas of proffered evidence, we point out that plaintiff instituted and prosecuted this action on two theories, namely those of negligence in failing to warn and negligence of design (or breach of warranty). The claim under the first is that the defendant failed to afford proper warning to persons using its elevators, and the second contends that the machine could and should have been differently designed. As to the warning, plaintiff argues that a warning should have been provided advising of the dangers of climbing upon these elevators or using them as ladders, especially since defendant should have known of such dangers. As to the design, plaintiff argues that the elevator should have been controlled by a start-stop device so located that the operator would have a full view of the machine, "as opposed to forcing the operator to engage or disengage the elevator at a position from which his view of the machinery was obstructed."

In accordance with the first of these contentions the jury was charged first that "plaintiffs claim and contend that the defendant Kewanee was negligent in failing to warn users of the machine of the hazards involved in climbing the machine when the defendant knew that it was customary for farmers and children to climb the machine and when it also knew that it was extremely dangerous for the machine to be used in such a way and finally when it knew that farmers and children were not aware of this danger." The issues concerning the alleged failure to warn center about three exhibits (plaintiff's Exhibits Nos. 14, 17 and 18) which were received in evidence.

These exhibits were received during plaintiff's cross-examination of two of defendant's witnesses and the vice of permitting a party to offer affirmative evidence during the presentation of his opponent's case becomes apparent. Had these exhibits, upon which heavy emphasis was placed by the plaintiff (and indeed by the trial court in its charge to the jury) been produced and offered as a part of plaintiff's case, proper identification, materiality and relevance could have been explored in a normal manner. In that circumstance the problems now primarily debated by the parties with reference to these exhibits would not exist.

The first of these exhibits is plaintiff's Exhibit 14, which is a booklet entitled "The Portable Farm Elevator," promulgated by the Agricultural Extension Service of Ohio State University. It was written by W. E. Stuckey, B. J. Lamp and K. A. Harkness. The authors are identified in the booklet as a safety specialist, an associate professor of agricultural engineering and an instructor in agricultural engineering of Ohio State University respectively, and Mr. Lamp and Mr. Harkness are further identified as being on the staff of the Ohio Agricultural Experiment Station. On the last page of the booklet there appear fifteen statements which may be fairly characterized as safety tips or suggestions, although they are not so identified. The thirteenth of these statements reads, "Don't use an elevator as a ladder or scaffold," and the fourteenth reads, "Never let children climb on an elevator." Through cross-examination of ...