Wilbur R. McLaughlin and Betty McLaughlin His Wife v. The Fellows Gear Shaper Company. Appeal of Hermann Pfauter

786 F.2d 592, 4 Fed. R. Serv. 3d 607, 1986 U.S. App. LEXIS 23240, 54 U.S.L.W. 2582

• Court: Court of Appeals for the Third Circuit
• Decided: March 24, 1986
• Docket: 85-1327
• Status: Published

Opinions

OPINION OF THE COURT

MANSMANN, Circuit Judge.

I.

This is a Pennsylvania diversity action in which plaintiffs were successful in recovering damages under the strict liability theory of Section 402A of the Restatement of Torts for personal injury caused by defectively designed machinery. On appeal, defendants have raised several trial errors, chiefly, that the district court erred in resubmitting the foreseeability issue to the jury and in sua sponte setting aside the jury’s finding of assumption of the risk. Finding no merit in any of the allegations raised, we affirm.

II.

This product liability action arose from an accident in which Wilbur McLaughlin suffered the amputation of his left thumb when he was preparing a Gear Hobbing Machine for use. The particular machine McLaughlin was preparing was a Pfauter Model P-900 hobber, manufactured by defendant Hermann Pfauter and sold to McLaughlin’s employer by defendant Fellows Gear Shaper Company (Fellows).¹

A hobbing machine is a milling machine used to cut teeth into cylindrical steel pieces which will become gears. The machine involved is designed for automatic, high-speed operation. It is equipped with adequate pinchpoint guarding during automatic operation. Before actually operating the machine, however, the worker must prepare or “set-up” the machine by making certain adjustments to the machine to ensure that the correct size gear is produced. Because precise adjustments are required, it is necessary for the worker to have access to the dangerous cutting surface area. The “set-up” procedure also involves jogging the machine manually, that is, causing the machine to rotate briefly. During the “set-up” operation the machine is in the manual mode.

It was while McLaughlin was engaged in jogging the machine in the course of carrying out the “set-up” operations that the accident occurred. McLaughlin was balancing in a half-crouch position on top of the machine, setting up the machine, and was using his left hand for balance and support. When he lowered the “collar” of the machine to the workpiece, the machine cut off the thumb on his left hand.

The plaintiffs’ theory at trial was that the Pfauter gear hobber was defective and unsafe since it did not have an automatic interlock or two-handed control switch which could be used during the manually operated “set-up” procedure. Defendants presented a two-pronged defense: first, defendants maintained that the machine was not defective because an automatic interlock was not necessary during the “set-up” stage when the machine was being operated manually and second, the defendants argued that McLaughlin had assumed the risk.

At the conclusion of the evidence the district court submitted five interrogatories to the jury covering the issues of the case. The interrogatories and the jury’s answers were as follows:

1. When the hobbing machine was delivered to LinkBelt (now P.T. Components), was it in a defective condition rendering it unsafe for its intended use?

Yes_X No_

2. If so, was the defective condition of the hobbing machine a proximate cause of the accident and plaintiff’s injury?

Yes_X No_

3. Was it foreseeable to the manufacturer that operators would, on occasion, stand on the machine while carrying out the setting-up process?

Yes _ No _X

4. Did plaintiff assume the risk?

Yesjf No_

5. (To be completed only if your verdict is in favor of plaintiffs.)

We, the jury, award damages as follows:

Mr. McLaughlin $100,000

Mrs. McLaughlin $20,000

Upon learning the jury’s answers, defendants moved for entry of judgment in their favor, and plaintiffs moved for a mistrial. The district court denied both requests. Instead, the court submitted two additional questions to the jury to clarify the foreseeability question, in particular, to determine the effect of McLaughlin’s standing on the machine during the time it was being set up for operation. The supplemental interrogatories and answers were as follows:

3(a) Was the fact that plaintiff stood on the machine a substantial factor in causing the accident?

Yes_ No _X

(b) Was it the sole cause of the accident?

Yes __ No _X

After ascertaining that the jury was unanimous in its answers to these supplemental interrogatories, the district court asked the following questions of the jury in open court and received the following responses:

THE COURT: Finally, members of the jury, by the answers that you have given, is it your intention to find in favor of the plaintiffs or in favor of the defendants? Can somebody state what you have in mind?

[THE FOREPERSON] Plaintiff.

THE COURT: You all agree you intend to find in favor of the plaintiffs in the sum of $120,000?

(The jury answered in the affirmative.)

Subsequently, the district court set aside the jury’s finding of assumption of the risk and entered judgment in favor of the plaintiffs in the amount of $135,879.45, including delay damages. Defendants’ subsequent motions for judgment notwithstanding the verdict and for a new trial were denied by the district court.

III.

Defendants’ first argument faults the procedural course of the case. Specifically, defendants contend that the district court erred when it determined that the answers to the special interrogatories were inconsistent and when it set aside the jury’s finding of assumption of the risk and entered judgment for plaintiffs, which defendants characterize as an entry of judgment n.o.v. in favor of plaintiffs on this issue. Given the record in this case, two things are clear: first, the district court followed the procedure for general verdicts and interrogatories outlined in Federal Rule of Civil Procedure 49(b)² and second, this case does not involve a judgment n.o.v. and so does not turn upon the procedural dictates of Federal Rule of Civil Procedure 50 which governs motions for directed verdict and for judgment notwithstanding the verdict. For these reasons, we find defendants’ first argument to be unpersuasive.

A. Rule h9(b)

The district court, following the procedures authorized in Rule 49(b), submitted five interrogatories to the jury together with a request for a general verdict at the conclusion of trial. The answers to the first two interrogatories reflected the finding by the jury that the hobbing machine was defective and that the defect was the proximate cause of the accident. The answer to the third interrogatory revealed that the jury found it was not foreseeable to the manufacturer that operators might stand on the machine, and the answer to the fourth interrogatory indicated that the jury further found that plaintiff had assumed the risk. The fifth interrogatory, which bore the instruction that it was only to be completed if the verdict was in favor of plaintiffs, clearly indicated a finding in favor of plaintiffs and read: “We the jury award damages as follows: Mr. McLaughlin $100,000, Mrs. McLaughlin $20,000.”

When assessing these jury findings, the district court observed in its May 1, 1985 opinion:

Obviously, these answers were inconsistent with each other. Under the instructions of the court, the jury could not have found in favor of the plaintiffs and thus awarded them damages, while at the same time finding that plaintiff had assumed the risk. And it was equally apparent that the true import of the jury’s answer to the third question could not be determined, because of the unfortunate incompleteness in the wording of the question. The finding that plaintiff’s ‘misuse’ of the machine was not foreseeable would absolve the defendants from liability if, but only if, there was a causal connection between the manner in which plaintiff was conducting the set-up operation, (i.e., the misuse of the product) and the happening of the accident — and the jury had not been asked to make a finding on that subject.

Accordingly, at the time of trial, the district court submitted to the jury two supplemental interrogatories in order to clarify the effect of McLaughlin’s standing on the hobbing machine while he was preparing it for operation. On this point the district court offered the following explanation:

I propose to submit a Question 3(a) to clarify that question of standing on the machine as follows: 3(a): “Was the fact that plaintiff stood on the¹ machine a substantial factor in causing the accident?" And a further question, “Was it the sole cause of the accident?” If they find it was the sole cause of the accident, and it was not foreseeable, then I think certainly it is a defendants’ verdict. And obviously if their finding of assumption of risk stands up that would be a defendants’ verdict. But if they find it was not a sole cause of the accident and if the Court sets aside the assumption of risk finding then that would be a verdict for the plaintiff.

Defendants complain that the district court was required by the Seventh Amendment to reconcile the inconsistencies in the original five jury interrogatories. Moreover, defendants contend that the answers to these five interrogatories were not inconsistent, that they could be reconciled and that a defense verdict was mandated.

In Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962), the Supreme Court of the United States held:

Where there is a view of the case that makes the jury’s answers to special interrogatories consistent, they must be resolved that way. For a search for one possible view of the case which will make the jury’s finding inconsistent results in a collision with the Seventh Amendment.

Id. 369 U.S. at 364, 82 S.Ct. at 786. Such a holding was required, reasoned the Court, since facts as found by the jury cannot be redetermined by a court. Id. at 359, 82 S.Ct. at 783. In support of its position, the Court cited the Seventh Amendment which mandates that “no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” Id. 369 U.S. at 359, 82 S.Ct. at 783.

In the ease before us, however, the answers are inconsistent on their face and cannot be read to be consistent. Answers to the first and second questions are inconsistent with the answers to the third and fourth questions. Moreover, the answers to the third and fourth questions are inconsistent with the general verdict in favor of plaintiffs. Recognizing this, the district court gave the jury further instructions and two supplemental questions and asked it to return for further deliberations.³ The district court did not redetermine the facts as found by the jury but rather asked the jury to reconsider its decision. In this there can be no Seventh Amendment violation.

Moreover, the decision to seek clarification from the jury in order to resolve the apparent conflict in the answers to the five original interrogatories is precisely what Rule 49(b) of the Federal Rules of Civil Procedure prescribes in such a situation, and the district court cannot be faulted for having followed it. In relevant part Rule 49(b) states:

When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers and verdict or may order a new trial, (emphasis supplied).

In Stanton v. Astra Pharmaceutical Products, 718 F.2d 553 (3d Cir.1983), we reviewed the provisions of Federal Rule of Civil Procedure 49 and noted that “[t]here is no doubt that Rule 49(b) expressly authorizes resubmission [to a jury] of inconsistent answers to special interrogatories.” At the end of trial, the Stanton jury was presented with twenty-seven “special questions” prepared by the district court and counsel. Although it returned with an award in favor of plaintiffs, the award was inconsistent with the jury’s answers to several of the “special questions.” To resolve this conflict, the district court resubmitted the questions to the jury after explaining to them its reason for doing so. The jury then deliberated and changed its answers to several key questions which resulted in an appropriate finding of liability to accompany the award of damages.

The defendant appealed, arguing that the questions were submitted under Rule 49(a) rather than 49(b). In reviewing that matter, we concluded that the “special questions” were submitted under Rule 49(b) which specifically allows for further clarification of inconsistent answers and accordingly found no abuse of discretion by the district court in resubmitting the “special questions” to the jury for resolution of inconsistencies.

Considering the defendant’s Rule 49(a) argument, however, we noted that the language of Rule 49(a) did not prohibit resubmission and that there is “no reason in logic or policy so to distinguish between Rule 49(a) and Rule 49(b) questions.” Id. at 575. Therefore, we concluded that the district court retained the discretion to resubmit questions also under this rule.

Although the Stanton case involves resubmission to the jury of the same questions and the case under review presently involves resubmission of supplemental interrogatories, the underlying purpose of both options is identical: namely, to obtain clarification from a still-empaneled jury of the meaning of its answers and verdict. Interestingly, we did identify and endorse in Stanton the option of submitting supplemental interrogatories to harmonize inconsistent jury responses. To this end, we cited to the following language from a decision by the United States Court of Appeals for the Fifth Circuit:

It would be anomalous to hold that, while a court pursuant to Rule 49(a) must search for a view of the case which will make the jury’s answers consistent, it may not submit an additional interrogatory to the jury to clarify an ambiguity.

Stanton, supra, at 575, citing Morrison v. Frito-Lay, Inc., 546 F.2d 154, 161 (5th Cir.1977).

We conclude, therefore, that the district court can be found neither to have erred when it determined that the answers to the interrogatories were inconsistent and non-reconcilable nor to have abused its discretion in submitting supplemental interrogatories to the jury in order to resolve the apparent inconsistencies and to clarify the answers given to the original five interrogatories.

B. Judgment N.O.V.

To reiterate, the district court set aside the jury's finding on assumption of the risk and entered judgment for plaintiffs. Defendants view this action on the part of the court as an entry of judgment n.o.v. in favor of plaintiffs on the assumption of risk issue. Thus, defendants claim that procedurally under the Federal Rules, in order to be entitled to a judgment n.o.v., the moving party, plaintiffs herein, first must have made a motion for directed verdict on the issue in question. Defendants argue that substantively there is more than enough evidence in the record to support the jury’s finding of assumption of risk.

We have reviewed the district court’s entire charge to the jury, especially that portion dealing with assumption of risk, and conclude that the court fully explained the legal principles which the jury was to apply in rendering its decision. We must assume that the jury, hearing all of this, understood the charge and accordingly returned a verdict for plaintiffs. Having received a verdict in their favor, plaintiffs were not in a position to be seeking judgment n.o.v.⁴ under Federal Rule of Civil Procedure 50.

It is, therefore, immaterial that plaintiffs failed to file a motion for directed verdict. This is not a case governed by the procedural dictates of Rule 50.⁵

Regarding defendants’ substantive argument, we conclude that the evidence in the record was not sufficient to sustain the jury’s findings of assumption of risk, and so the district court was justified in setting aside this finding and entering judgment on the general verdict rendered by the jury in favor of plaintiffs.

A similar issue was presented to us in Elder v. Crawley Book Machinery Company, 441 F.2d 771 (3d Cir.1971), also a Pennsylvania diversity case brought under Section 402A of the Restatement of Torts. In Elder, the plaintiff severed two fingers from her left hand while preparing a Building-In Machine for the day’s workload. Plaintiff contended that the machine was defectively designed, and the defendant pressed the defense of assumption of the risk.

After reviewing the law with regard to assumption of the risk, we concluded “[Tjhat if plaintiff’s fingers were placed in a dangerous position in the machine by reason of inadvertence, momentary inattention or diversion of attention, that would not amount to assumption of the risk.” Id. at 774. As we noted in Elder, the Restatement’s definition of the doctrine of assumption of the risk “makes it clear that the law envisions a conscious appreciation of danger and a willingness to risk it.” Id. at 773. See also Burch v. Sears Roebuck and Co., 320 Pa.Super. 444, 467 A.2d 615, 619, (when plaintiff places himself in a position of danger, while consciously aware and appreciating the danger, and not as a result of momentary inattention or inadvertence, he may be found to have assumed the risk, thus precluding liability); Section 496 Restatement of Torts (Second).

We conclude that there was no evidence presented from which a jury could conclude that McLaughlin consciously or willingly accepted the risk of having his thumb amputated. McLaughlin had worked on a regular basis on the gear hobber as a machine operator for thirteen or fourteen years. From his testimony it is clear that McLaughlin believed his left hand was in a safe position when he activated the lever lowering the tail stalk with his right hand. It was his usual practice to position his hands on the machine as he did on the day of the accident. Giving an account of the accident, McLaughlin testified as follows:

... I was holding myself with my left hand out like this, I seen I was high and I reached over with my right hand and looked over to see where the lever was, I reached over, I pulled the lever and when I pulled the lever to bring it down I felt pain and I jumped back to the floor. I looked out at my hand and I saw my thumb was missing. And I realized the terrible, terrible thing had happened. I lost my thumb. That is all it was, I lost it. I looked up and I seen my thumb stuck between the journal, the sticker, lower journal and the journal, it was riding on. It was stuck between the outboard — stuck between the tail stalk and bushing and the tail stalk and the journal.

Q. What was the position of your left hand when you went to operate the lever?

A. It was resting against the piece, wherever it was resting. I used that like a post to rest myself and balance myself up here. It is the best place to put your hand because over here you would cut your hand on the hob and that is too high to reach. So I always put my hand out on the shaft that I am working on. I was balancing myself like this and I had my hand out like that below where I was working and I could see where I have got to do and seen I had to bring it down and knowing I had to bring it down the quickest way to bring it down was to reach right over and get it. I reached over and got it and brought it down.

Q. At that time were you aware that your left hand was in a pinch point position?

A. No, sir, it was not in a pinch point position. It was down below the pinch point position.

Q. But, nevertheless, your left hand was indeed amputated.

A. Yes sir.

Q. Your left thumb?

A. My left thumb was amputated.

On cross McLaughlin reaffirmed his belief that his left hand was in a safe place when he activated the machine.

We are in agreement with the summation afforded by the district court on this point:

There [is] ... no evidence to suggest that plaintiff knowingly or intentionally placed his thumb in a position of danger; rather, it [is] clear that plaintiff thought his hand was in a safe position, became preoccupied with what he was doing, and inadvertently allowed his thumb to reach a point of danger.

The finding by the jury on the assumption of the risk issue was contrary to the evidence, and it was, therefore, appropriately set aside by the district court. Moreover, it was appropriate for the district court to enter judgment in favor of plaintiffs.

IV.

Defendants also raise in this appeal three other issues; specifically, 1) that the district court erred in concluding that the Gear Hobbing Machine was unreasonably dangerous; 2) that the district court erred in refusing to instruct the jury on the issue of comparative causation; and 3) that the district court erred in permitting Dr. Carl A. Silver to testify as an expert witness on the design of the Gear Hobbing Machine. We find no merit in any of these arguments.

V.

Accordingly, we affirm the judgment of the district court.

1 . Fellows subsequently filed a crossclaim for indemnity against Hermann Pfauter. This is not presently before us on appeal.

2 . Fed.R.Civ.P. 49(b) provides:

(b) General Verdict Accompanied by Answer to Interrogatories. The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.

In the district court opinion denying defendants’ Motion for Judgment n.o.v. and/or a New Trial, the court represents: "The procedure which was followed in this case is in substantial compliance with that contemplated by F.R.Civ.P. 49(b).” This evinces the intent of the district court that its actions conformed to the framework of Rule 49(b).

3 . The record reflects that plaintiffs' counsel did make a request that the jury reconsider its answers and verdict in light of the inconsistent findings but did not specifically cite Rule 49(b).

4 . As a parenthetical note, we point out that judgment n.o.v. literally means judgment non obstante verdicto, or a judgment not withstanding the verdict rendered by the jury. Black’s Law Dictionary, 5th ed. 1979. Plaintiffs, as verdict winners, had no reason to pursue such a remedy.

5 . In pertinent parts. Rule 50 provides:

Rule 50. Motion for a Directed Verdict and for Judgment Notwithstanding the Verdict a) Motion for Directed Verdict: When Made; Effect. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

b) Motion for Judgment Notwithstanding the Verdict. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.

1 . Fed.R.Civ.P. 49(b) provides in pertinent part: (b) General Verdict Accompanied by Answer to Interrogatories.

The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict____ When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial.