Kendall v. Cleveland Crane & Engineering Co.

555 S.W.2d 817, 1977 Ky. App. LEXIS 801
CourtCourt of Appeals of Kentucky
DecidedMarch 4, 1977
StatusPublished
Cited by1 cases

This text of 555 S.W.2d 817 (Kendall v. Cleveland Crane & Engineering Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kendall v. Cleveland Crane & Engineering Co., 555 S.W.2d 817, 1977 Ky. App. LEXIS 801 (Ky. Ct. App. 1977).

Opinion

LESTER, Judge.

Ronald Kendall while operating an overhead crane in Reynolds Metals Company factory on Produce Lane in Jefferson County suffered injuries when the crane snapped free from the ceiling and struck him. Kendall sued Cleveland Crane & Engineering Company, the manufacturer, Bohnert Equipment Company, Cleveland Crane’s distributor through which Reynolds had dealt and Rapid Installation Company which installed the system. Kendall sought to recover on the basis of strict liability from Cleveland Crane and Bohnert and proceeded on a negligence theory against Rapid Installation. Trial of the action resulted in the jury returning a verdict for all defendants. Kendall appeals from the judgment in favor of Cleveland Crane and Boh-nert.

Appellant seeks reversal claiming that the court should have granted him a directed verdict, or in the alternative, that he should receive a new trial on the ground that the court erred in instructing the jury.

On September 5, 1967 Reynolds submitted a purchase order to Bohnert Equipment Company for two overhead, under-slung, floor controlled, traveling cranes for Reynolds newly completed factory. Cleveland Crane supplied all the components for this type of crane. Although the purchase order contained specifications and description of the equipment to be furnished it [818]*818made clear that Reynolds considered the vendor responsible for proper engineering, design and installation of the system. Reynolds approved the drawings submitted to it and Bohnert engaged Rapid Installation which installed the equipment supplied by Cleveland Crane.

The crane which concerns us traveled on runways 300 feet long and could be moved on these to the north part of the building or south to the loading dock. In addition the trolley with the hoist could be moved east and west between the railways on the bridge made of 50 foot double girder. The operator manipulated the crane by pressing the appropriate button of the six on the hand held control pendant which hung from a cable connected to the top of the crane. The design allowed for a 5% motion in the runways. This entire system hung suspended from the ceiling by hanger rods. The roof of the building slanted so that beginning at the eastside the length of the hanger rods went from 240 inches to 17 inches on the westside. As a consequence of the roof’s angle the shorter hanger rods underwent greater stress because of excessive sway. This stress eventually caused some of the hanger rods to fail. For a period of time Reynolds simply purchased additional hanger rods to replace the broken ones, however, when Emil Graeser, the president of Bohnert, discovered this practice he became concerned and went to speak with Frank Kittel the maintenance engineer for Reynolds. This conversation resulted in Graeser contacting Carl Berge the district manager for Cleveland Crane in the Louisville area and they both went to the Reynolds plant to talk to Kittel. Graeser testified that on one of the several visits he made to Reynolds concerning the breaking hanger rods he observed an employee jogging the crane — that is alternatively pressing the forward and reverse buttons to maneuver a load into position. Cleveland Crane analyzed a broken hanger rod and sent a letter to Graeser which recommended sway bracing to prevent more than the allotted 5% movement and pointed out that a very slight pivot of the longer hanger rods would be greatly accentuated on the shorter hanger rods. Although Graeser never forwarded a letter to this effect to Reynolds he testified that Berge revealed orally all the information contained in the letter to Kittel and that Kittel assured them both that sway bracing would be installed.

On September 30, 1971 Kendall, who had been working about 10 days as a crane operator, while attempting to place a 2,070 pound load into a truck, heard a loud pop at which time he glanced up and tried unsuccessfully to avoid the falling crane. No one apprised Kendall of the danger caused by the failing hanger rods.

We feel that Post v. American Cleaning Equipment Corporation, Ky., 437 S.W.2d 516 (1968) answers appellant’s contention that his motion for a directed verdict should have been sustained. In that case Post received injuries while using an industrial vacuum cleaner when a fan in it disintegrated due to its being operated from an electrical outlet supplying 220 DC voltage. The manufacturer included written instructions with the machine which read in part, “Be sure to plug vacuum into the proper electrical outlet as indicated on the Name plate. If the vacuum is plugged into improper current serious damage to both machine and operator may occur.” A decal affixed under the overhang of the breather stated, “Only use on 115 volts AC or DC.” Post, supra, at 518. In regard to Post’s claim that the trial court erred in refusing to direct a verdict in his favor, the Court wrote,

we are not so persuaded. There was direct conflict in the testimony as to whether appellant knew or ought to have known that the equipment was specifically limited for use with 115 AC voltage. There was evidence that appellant knew or should have known that in some instances violent reaction may occur when an electrical appliance is attached to current greater than that for which it is adapted.

The Court went on to say,

[njeither are we persuaded that the ap-pellee was entitled to a directed verdict. It is true that written instructions furnished to the company at the time of [819]*819delivery of the equipment made reference to the possibility of serious injury to the equipment and its operator in the event of its connection with an improper electrical outlet. It is also true that there was evidence that the equipment bore statements that it was designed for use with 115 volts, AC or DC, but the evidence respecting these notices does not unequivocally demonstrate that the nature of the danger was adequately presented as to absolve appellee as a matter of law. Post, supra at 519.

This reasoning applies equally to the case before us now since clearly Kittel constituted the proper person to receive notification as to the crane’s defects. Ulrich v. Kasco Abrasives Co., Ky., 532 S.W.2d 197 (1976). Although the jury had sufficient evidence to find for the appellant, the conversations Berge and Graeser had with Kittel prevented such a finding as a matter of law, despite the fact that there remains considerable doubt as to whether these discussions sufficiently revealed the danger caused by the breaking hanger rods.

The appellant complains of faulty instructions as his second ground for reversal. As to appellant’s reliance upon the holding in House v. Kellerman, Ky., 519 S.W.2d 380 (1974) it would seem that he has not properly preserved the error on appeal. The Court in House, supra, reversed the judgment of the lower court because in submitting the case to the jury the circuit judge gave a superceding cause instruction. The court in the case at bar did indeed instruct the jury that if Reynolds’ activity was the sole cause of the accident, the law is for all the defendants. However, the source of this instruction can be traced to an instruction tendered to the court by the plaintiff.

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Bluebook (online)
555 S.W.2d 817, 1977 Ky. App. LEXIS 801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kendall-v-cleveland-crane-engineering-co-kyctapp-1977.