Zollman v. Symington Wayne Corporation

• Decision Date: 25 February 1971
• Docket Number: No. 17991.,17991.
• Parties: Kenneth L. ZOLLMAN, Plaintiff-Appellee, v. SYMINGTON WAYNE CORPORATION, a Corporation; and Globe Hoist Company, a Corporation, Defendants-Appellants. Howard F. LEISURE, Plaintiff-Appellee, v. SYMINGTON WAYNE CORPORATION, a Corporation; and Globe Hoist Company, a Corporation, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

438 F.2d 28 (1971)

Kenneth L. ZOLLMAN, Plaintiff-Appellee, v. SYMINGTON WAYNE CORPORATION, a Corporation; and Globe Hoist Company, a Corporation, Defendants-Appellants.

Howard F. LEISURE, Plaintiff-Appellee, v. SYMINGTON WAYNE CORPORATION, a Corporation; and Globe Hoist Company, a Corporation, Defendants-Appellants.

No. 17991.

United States Court of Appeals, Seventh Circuit.

February 9, 1971.

Rehearing Denied February 25, 1971.

James J. Stewart, Terence L. Eads, Indianapolis, Ind., for defendants-appellants; Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, Ind., of counsel.

Joseph A. Noel, Floyd F. Cook, Kokomo, Ind., for plaintiffs-appellees; Cook & Cook, Noel, Noel & Williams, Kokomo, Ind., of counsel.

Before SWYGERT, Chief Judge, DUFFY, Senior Circuit Judge, and KERNER, Circuit Judge.

SWYGERT, Chief Judge.

This is an appeal in a diversity action in which the plaintiffs, Kenneth L. Zollman and Howard F. Leisure, were awarded damages for personal injuries against Symington Wayne Corporation and Globe Hoist Company, a division of Symington Wayne. The suit arose out of an accident in Kokomo, Indiana, on September 25, 1965 in the B & Z Muffler Shop owned and operated by plaintiff Zollman.

Both plaintiffs were seriously injured when a car fell from a hoist manufactured by Globe. The plaintiffs, alleging strict liability and negligence, proceeded on the theory that the hoist was defective in design. The jury denied recovery on strict liability, but found the defendants guilty of negligence. Defendants appeal from the denial of their motions for a directed verdict and for judgment notwithstanding the verdict. The basic issue, whether there was substantial evidence to prove that any defect in the hoist proximately caused the accident, raises questions which necessitate a detailed statement of the facts.

The hoist in question has a rectangular frame made of I-beams, with upright posts at each corner. On top of the lateral I-beams are inverted V-rails which support a front and rear crossbar. These crossbars have rollers at each end which permit the bars to roll along the length of the V-rails. The crossbars are equipped with hinged jacks. The following is a schematic illustration of the hoist.

To operate the hoist a mechanic drives the car over the back I-beam and crossbar by means of removable ramps. The entire car is centered inside the rectangular frame which rests on the floor. The operator then rolls the rear crossbar under the rear of the car and attaches the jacks to the car's frame. He positions the front crossbar between the front wheels and bumper. Whether the proper use of the front crossbar includes attaching the jacks is a much-disputed point.

The operator then activates the electric hoist which uses cables at each corner to lift the entire rectangular frame and the car with it. The crossbars and jacks are the only points of contact with the frame of the car. When the car is up the wheels hang free, and the entire undercarriage of the car is exposed for motor, transmission, and muffler work.

On the day of the accident Zollman raised a 1961 Pontiac on the hoist in order to replace the exhaust pipe and muffler. He then lowered the car and started the motor to test the exhaust. Hearing a leak, he again raised the car and proceeded to install a new gasket. As Zollman was about to complete the repairs, a customer, Howard Leisure, walked into the shop. Leisure stepped under the Pontiac to ask Zollman about a bill. At that moment, the front end of the car fell from the hoist, pinning the two men under it.

Plaintiffs' case is based almost entirely on Zollman's testimony about his operation of the hoist. He said that before the second lift he checked the position of the front crossbar and pressed it back against the front tires. He did not use the front jacks. Plaintiffs also presented expert testimony and videotapes based on tests of the hoist. These witnesses described how a front crossbar, positioned against the front tires, would slide forward a few inches as the car was lifted. Their explanation was that the car frame, which rests on the crossbar, slopes downward from the tires forward to the radiator bolt. It is plaintiffs' theory that, because the front crossbar slides a few inches forward when the car is lifted, it is possible that the bar somehow "jumped out" from under the frame and allowed the car to drop. This theory, however, was never substantiated by any of the numerous tests performed by the expert witnesses. In no test were experts for either party able to dislodge the front crossbar from its final position against the radiator bolt. Various assaults on the raised car, from men shoving and rocking it to a hydraulic jack exerting hundreds of pounds of pressure, produced only one type of movement: the entire car would roll along the lateral I-beams but would not fall off the hoist.

Defendants made a direct attack on the credibility of Zollman's testimony. The evidence was clear and undisputed that if the crossbar was pushed against the front tires, as Zollman stated, there was no way, proven or hypothetical, for the car to fall off the hoist. Defendants' experts testified that the weight of the car on the crossbar, plus the bulk of the radiator bolt, combined to "lock" the crossbar behind the bolt. The possibility that the crossbar could have sheared off the bolt was contradicted by testimony that the radiator bolt, indeed the entire undercarriage of the car, was not damaged in the accident.

Defendants' explanation of the accident is based on the tests in...