Colter v. Barber-Greene Co.

525 N.E.2d 1305, 403 Mass. 50, 8 U.C.C. Rep. Serv. 2d (West) 375, 1988 Mass. LEXIS 211
Massachusetts Supreme Judicial Court·Decided July 20, 1988·Published·Cited by 88 cases

Opinions

Abrams, J.

On December 5,1978, David E. Colter suffered severe arm injuries while greasing the gears of a twin screw sand classifier owned and operated by Colter’s employer, Marshfield Sand & Gravel Company (Marshfield).2 The machine was manufactured by a division of Barber-Greene Company (Barber-Greene) which sold it to Worcester Sand & Gravel Company (Worcester). Worcester traded the machine to New England Road Machinery Company (New England), which later sold it to Marshfield. Colter sued Barber-Greene, Worcester, and New England asserting causes of action for negligence, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular use.3 The jury found Barber-Greene to have been 36% negligent, found New England to have been 15% negligent, found Worcester not to have been negligent,4 and found Colter to have been 49% contributorily negligent. On the warranty count, the jury found that Barber-Greene and New England each had breached its implied warranty of merchantability and had proximately caused Colter’s injuries. However, the jury also found that Colter’s recovery was barred because he had actual knowledge of the machine’s defective condition, but nonetheless proceeded unreasonably to use the machine.

Barber-Greene and New England moved for judgment notwithstanding the verdict or for a new trial, arguing that the finding on the warranty count was inconsistent with and negated [52] the finding that Barber-Greene’s and New England’s negligence proximately caused Colter’s injuries.5 The trial judge ruled that New England and Barber-Greene were entitled to judgment in their favor. Colter subsequently filed a motion for relief from judgment on the basis of Richard v. American Mfg. Co., 21 Mass. App. Ct. 967 (1986).6 The judge allowed the motion and entered judgment for Colter. New England and Barber-Greene appealed. This court granted Barber-Greene’s application for direct appellate review. We conclude that there is sufficient evidence on the issue whether the negligent design of the sand classifier proximately caused Colter’s injuries to submit that claim to the jurors. We agree with Barber-Greene that the evidence on negligent failure to warn is insufficient. Because the jurors were not asked to apportion Colter’s negligence between the two theories of negligence, there must be a new trial on negligent design.

At the time of his accident, Colter was employed as a manager at Marshfield’s quarry in Weymouth. Marshfield operated quarrying equipment at this location including the twin screw sand classifier involved in Colter’s accident. The twin screw classifier consisted of a rectangular hopper containing two screw augers. The screws were driven by a set of bevel gears which ran at a speed of approximately twenty to thirty revolutions per minute. The gears, which were powered by an electric motor, were mounted on a steel frame approximately twenty feet above ground. A conveyor belt fed wet sand into the hopper. The screws carried the sand upward to another con[53] veyor belt. The action of the screws removed the water from the sand; the water poured out the low end of the machine.

Barber-Greene’s specifications called for a guard to cover the bevel gears, and they did not sell the machine without one. When Worcester purchased the machine involved in Colter’s accident in 1952, the purchase included a bevel gear guard. By the time New England took the twin screw sand classifier from Worcester in trade, there was no guard on the machine and the owner’s manual which showed the guard in place was missing as well. New England sold the machine to Marshfield in 1969 without the guard or the owner’s manual. New England did not inform Marshfield that the machine’s bevel gears should be covered. Although Barber-Greene manufactured replacement guards, Marshfield never obtained a guard for the gears.

Colter began his employment with Marshfield in 1971 as a concrete salesman assigned to Marshfield’s Cohasset office.7 In 1975, Colter was promoted to the position of safety director at the Weymouth plant. In the summer of 1977, Marshfield moved the sand classifier to Weymouth and mounted it on the twenty-foot high steel structure. Although Colter was generally aware of the dangers of exposed gears, he was not aware that the machine required a guard. Personnel from the United States Bureau of Mine Safety and Health Administration frequently inspected the Weymouth facility, but never instructed Colter to obtain a bevel gear guard for the sand classifier because the gear box was mounted above ground.

On the day of the accident, Colter arrived at work sometime between 10:30 and 11 a.m. The plant’s operation had started late that day because the cold weather had frozen some pipes. Shortly after lunch, Colter passed the “wet end of the plant” and heard a loud screaming “steel-on-steel” noise emanating from the gears of the sand classifier. Colter had never heard the machine make this kind of noise and, because the noise was so loud, he feared that the machine would come apart. Colter knew that the company’s operations at that time were [54] critical, and that, if the sand classifier broke, it would put Marshfield’s client out of business. Responding to what he believed to be an emergency situation,8 Colter instructed another employee to get him a grease gun. After obtaining the grease gun, Colter drove a front-end loader to the steel structure supporting the sand classifier. Colter climbed onto the structure, and stood in the middle of the conveyor belt on two angle irons. He injected grease into the gears on one side and the noise stopped. Before Colter descended from the machine, his jacket caught in the gears, pulling in his arms. Colter suffered severe injuries requiring the amputation of his right arm below the elbow, amputation of his left index finger and causing substantial loss of function in his left arm.

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Colter v. Barber-Greene Co., 525 N.E.2d 1305, 403 Mass. 50, 8 U.C.C. Rep. Serv. 2d (West) 375, 1988 Mass. LEXIS 211 (Mass. 1988).

525 N.E.2d 1305 (Colter v. Barber-Greene Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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