Donald E. Leistra v. Bucyrus-Erie Company

443 F.2d 157

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 20, 1971
• Docket: 20227
• Status: Published

Opinions

BRIGHT, Circuit Judge.

Donald Leistra, as plaintiff, brought this diversity action under Nebraska law to recover for injuries he sustained in an industrial accident. He attributed his injuries to negligence in the design of a large crawler-type crane, manufactured by Bucyrus-Erie Company, about which he worked as an employee of building contractor Peter Kiewit Sons Company of Omaha, Nebraska. A jury awarded Leistra $70,000 in damages, but the federal district court, Judge Robinson presiding, granted defendant Bucyrus-Erie judgment notwithstanding the verdict. Leistra brings this timely appeal. We agree with the district court’s decision that Leistra, as a matter of law, established no proper basis for a claim against Bucyrus-Erie.

The facts surrounding the accident are not in dispute. Leistra served as an oiler or assistant to the operator of the fifty-ton load capacity Bucyrus-Erie 30-B Series Three Supercrane. On April 22, 1966, the crane was being used to lift and transport freshly-made concrete from truck mixers to the top of a bridge under construction. The operator of the crane, Donald Cronkhite, after moving the machine from one location to another at the bridge site, discovered that a portion of the steel cable used to raise and lower the load had spilled out beyond the confines of its drum, the front drum, and had become wedged between the drum and an adjacent circular chain called the power-down chain. The power-down chain and its sprocket operate as a brake in controlling the downward movement of the load. Apparently, the movement of the crane caused the cable to unwind and jump over the drum flange. This, in turn, prevented the ball and hook at the end of the boom from being lowered to pick up another load.

The front drum and power-down unit are housed in a recessed compartment at the center-front of the cab and above the machinery deck. Though recessed, the unit is, nevertheless, unshielded at its exterior part. It is thus accessible to contact by a person located at or near this point. This site, at which the accident occurred, is illustrated in the following photograph and legend.

[Plaintiff's Exhibit 4]

Operator Cronkhite called Leistra’s attention to the wedged cable. Leistra climbed onto the machine and first attempted to free the cable by hand. When this effort failed, he tried to dislodge the cable by prying it with a crowbar. During these efforts, the master clutch which transfers power from the engine to the front drum was disengaged. When Leistra was unable to pry the cable free, Cronkhite advised plaintiff that he would assist him by moving the drum slightly back and forth. As Leistra continued his attempts to pry the cable from the chain, Cronkhite engaged the master clutch, rotating the drum twice back and forth. With this additional force, the power-down chain snapped and struck Leistra in the face, causing his injuries, including the loss of an eye.

Leistra brought suit against BucyrusErie Company, claiming negligent design and manufacture of the crane in two respects: (1) failure to install a small metal shield, called a rope-guard, which allegedly permitted the cable to become wedged; and (2) failure to provide a shield over the power-down unit, which allegedly permitted the broken chain to hit plaintiff. The district court rejected the jury award on the basis that the plaintiff failed, as a matter of law, to establish that any such negligence on the part of Bucyrus-Erie caused his injuries. The court stated, in part:

The problem that is bothersome to the Court is the matter of causation, whether it be termed as a duty owed, proximate cause, foreseeability or a superseding intervening cause. Choosing first to speak mainly in terms of a superseding intervening cause, the Court believes, and so holds, that some conduct by either the plaintiff, other employees, or his employer, or a combination thereof, superseded any preexisting negligence on the part of the defendant thereby relieving defendant of liability.

We shall likewise consider the matter of causation, mindful, however, that such consideration requires an examination of aspects of negligence, foreseeability and duty. See Schneider v. Chrysler Motors Corp., 401 F.2d 549, 557 (8th Cir. 1968); Restatement (Second) of Torts § 281, comment h. For a general discussion, see Annot., 100 A.L.R.2d 942 (1965). We, of course, construe the evidence most favorably for the plaintiff, who obtained the jury verdict. See Schneider, supra, 401 F.2d at 555; Chicago, Burlington & Quincy R.R. v. Beninger, 373 F.2d 854, 856 (8th Cir. 1967).

Although a rope-guard was not present on the crane at the time of the accident, no evidence of probative force suggests that its absence is chargeable to Bucyrus-Erie. Cf. Smith v. Hobart Manufacturing Co., 302 F.2d 570 (3d Cir. 1962); Tomicich v. Western-Knapp Engineering Co., 423 F.2d 410 (9th Cir. 1970). On the contrary, the manufacturer’s records disclosed that such a guard, which was designed to prevent loose cable from spilling over the drum flange and contacting the power-down unit had been specially manufactured and installed on this particular crane prior to its leaving the factory. Moreover, plaintiff’s expert witness testified that a rope-guard will not always prevent the cable from jumping over the flange of the drum. On the basis of this evidence, we cannot attribute the crane’s malfunction, which was caused by entanglement of the cable and the power-down chain, to any negligent conduct on the part of BucyrusErie. Plaintiff’s claim for recovery must, therefore, rest solely upon the manufacturer’s failure to provide a shield over the power-down unit.

Upon reviewing the evidence on this issue, we conclude, as did the district court, that any negligence on the part of Bucyrus-Erie did not operate as a legal cause of plaintiff’s injuries. In so holding, we rely in part upon the rules of the Restatement of Torts, Second. The Nebraska Supreme Court has often cited the Restatement with approval in considering causation. See Landmesser v. Ahlberg, 184 Neb. 182, 166 N.W.2d 124, 127 (1969); Hoffman v. Jorgensen Awnings, Inc., 178 Neb. 261, 132 N.W.2d 867, 870 (1965). We also have utilized the Restatement in resolving similar issues arising under Nebraska law. See Schneider, supra, 401 F.2d at 558.

Section 281 of the Restatement of Torts, Second, sets forth the elements of a cause of action for negligence. The following comment and illustration from that section apply to the facts of this case:

/. Harm beyond the risk. Where the harm which in fact results is caused by the intervention of factors or forces which form no part of the recognizable risk involved in the actor’s conduct, the actor is ordinarily not liable. This is subject, however, to the qualification that where the harm which has resulted was itself within the risk created, the fact that it has been brought about in a manner which was not to be expected, or by the intervention of forces which were not within the risk, does not necessarily prevent the actor’s liability. * * *

Illustration:

3. A gives a loaded pistol to B, a boy of eight, to carry to C. In handing the pistol to C the boy drops it, injuring the bare foot of D, his comrade. The fall discharges the pistol, wounding C. A is subject to liability to C, but not to D.

Thus, for Bucyrus-Erie to be liable for plaintiff’s injuries, the resulting harm must be within the recognizable risk, if any, created by Bucyrus-Erie. Appellant charges the manufacturer with failing “to guard the power-down chain.” He fails to distinguish between shielding against the risk of human contact with the power-down unit and shielding against the risk of parts flying from the unit. Leistra sustained his injuries, not from contact with the moving power-down chain, but rather from being hit by a part of the chain when it broke.

The record is devoid of any evidence indicating that Bucyrus-Erie, in failing to provide a shield, created a risk of the power-down chain breaking, flying and hitting a workman. The plaintiff produced evidence that industry standards require the shielding of sprockets, drums and chains, as well as other moving parts of equipment. The basic purpose of machine guarding, according to the evidence, is to prevent injuries from the following sources: (1) direct contact with moving parts; (2) work in process; (3) mechanical failure; (4) electrical failure; and (5) human failure. Plaintiff’s expert witness, a safety consultant, only briefly commented upon mechanical failure, as follows:

The next one is to guard against mechanical failure. Breaks. If it flies out, it is contained. It doesn’t fly. A grinding wheel that breaks, a belt that breaks, it isn’t allowed to fly out and strike people in the proximity or send fragments out like missiles.

While the expert opined generally that the crane in question did not comply with the standards of the industry since the power-down unit was “not guarded for contact * * * [or] from parts flying from it,” he made no comment on the location of the power-down unit within the recessed compartment, the chain’s strength, or the risk of it flying out of the compartment and striking a workman.

We note the following other evidence: (1) the power-down chain was designed to handle three times the normal operating load; (2) a basic rule of safety, here taught by plaintiff’s employer, is that no repairs, adjustments or lubrication should be made while a machine is in operation; and (3) the power-down chain and sprocket were located in a recessed compartment. On the basis of this evidence, we conclude that the resulting harm to Leistra was not within any recognizable risk created by the manufacturer.¹

Even if it were, however, the undisputed facts establish that other human conduct intervened to insulate the defendant from liability. Although we find no Nebraska case factually similar to this one, Nebraska courts have frequently held that an independent intervening' force severs the chain of causation flowing from the original tortfeasor. E. g., Lock v. Packard Flying Service, Inc., 185 Neb. 71, 173 N.W.2d 516 (1970) (pilot’s failure to inspect and discover a missing rudder on an airplane insulated the party responsible for removal of the rudder from liability to the injured party); Jarosh v. Van Meter, 171 Neb. 61, 105 N.W.2d 531 (1960) (driver who double-parked his truck on a street in violation of the law was not responsible for injuries to a pedestrian struck by an automobile passing the parked truck); Shupe v. Antelope County, 157 Neb. 374, 59 N.W.2d 710 (1953) (a heavy equipment operator who caused a partial collapse of a highway bridge was not responsible for a subsequent accident after township officials, having notice of the obstruction, failed to erect appropriate warning signs); Wax v. Cooperative Refinery Ass’n, 154 Neb. 42, 46 N.W.2d 769 (1951) (a nonfireman’s attempt to save life and property from destruction by a fire relieved the person who negligently started the fire from liability for the former’s death).

These cases speak in terms of the defendant creating a passive condition which is operated upon by another active moving force, a concept not readily adaptable to a products liability case against a manufacturer since the latter’s conduct almost always requires activation by another force to produce an injury. We deem the real question to be whether “the forces set in operation by the defendant have come to rest in a position of apparent safety, and some new force intervenes.” Prosser, Law of Torts 286 (3d ed. 1964).² See Morse v. Gray, 166 Neb. 557, 89 N.W.2d 842 (1958).

As mentioned above, the absence of the rope-guard may have permitted the entanglement of the steel cable with the power-down chain, forcing the chain out of its normal position. But, once the crane had become disabled, the absence of a shield over the power-down unit did not pose a hazard to the workmen. The power-down chain broke and hit plaintiff as a result of the following: (1) plaintiff applying a force by his prying action, further stressing the chain; and (2) the crane operator’s movement of the drum back and forth, producing the necessary additional force to break the chain. We think these events must be characterized as superseding the failure of Bucyrus-Erie to place a shield over the particular drum and chain unit. We, therefore, hold that any negligence on the part of Bucyrus-Erie in failing to shield was not the legal cause of plaintiff’s injuries.³

Appellant, in support of his position, relies heavily upon comments made by this court in Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968). We find this reference inapposite both factually and legally. Larsen enunciated the duty of an automobile manufacturer to anticipate an event likely to occur, the colliding of an automobile. No such similar element appears in the facts of this case.

We find no proper basis to support the verdict for the plaintiff. Accordingly, we affirm.

1 . Assuming, arguendo, that defendant’s failure to shield could be said to have created an unreasonable risk of injury from flying parts to a person working about the machine, the evidence in this case fails to show that the absence of a shield operated as a contributing factor to plaintiff’s injuries. Ordinarily, a workman attempting repairs to a machinery unit housed under or behind a protective cover or screen must first remove the covering. Plaintiff produced no evidence tending to demonstrate that an appropriate shield would have permitted him to work on the power-down unit with the shield in place. Without such proof, the failure to equip the crane with a shield is not the cause in fact of the injury. See Restatement of Torts 2d, § 432(1) ; 2 Harper & James, The Law of Torts, 1114, n. 18 (1956) ; Prosser, Law of Torts 242 (3d ed. 1964).

2 . Professor Prosser aptly comments upon the cause and condition dichotomy, as follows:

“Many courts have sought to distinguish between the active ‘cause’ of the harm and the existing ‘conditions’ upon which that cause operated. If the defendant has created only a passive, static condition which made the damage possible, he is said not to be liable. But so far as the fact of causation is concerned, in the sense of necessary antecedents which have played an important part in producing the result, it is quite impossi-

ble to distinguish between active forces and passive situations, particularly since, as is invariably the case, the latter are the result of other active forces which have gone before. If the defendant spills gasoline about the premises, he creates a ‘condition;’ but his act may be culpable because of the danger of fire. When a spark ignites the gasoline, the condition has done quite as much to bring about the fire as the spark; and since that is the very risk which the defendant has created, he will not escape responsibility. Even the lapse of a considerable time during which the ‘condition’ remains static will not necessarily affect liability; one who digs a trench in the highway may still be liable to another who falls into it a month afterward. ‘Cause’ and ‘condition’ still find occasional mention in the decisions; but the distinction is now almost entirely discredited. So far as it has any validity at all, it must refer to the type of ease where the forces set in operation by the defendant have come to rest in a position of apparent safety, and some new force intervenes. But even in such eases, it is not the distinction between ‘cause’ and ‘condition’ which is important, but the nature of the risk and the character of the intervening cause.” (footnotes omitted)

3 . Section 440 of the Restatement of Torts, Second, states:

“A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.”

Comment b of that section explains:

“A superseding cause relieves the actor from liability, irrespective of

whether his antecedent negligence was or was not a substantial factor in bringing about the harm. Therefore, if in looking back from the harm and tracing the sequence of events by which it was produced, it is found that a superseding cause has operated, there is no need of determining whether the actor’s antecedent conduct was or was not a substantial factor in bringing about the harm.”