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Trowbridge v. Abrasive Co.

filed.: July 25, 1951.

TROWBRIDGE
v.
ABRASIVE CO. OF PHILADELPHIA ET AL.



Author: Staley

Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.

STALEY, Circuit Judge.

On April 27, 1945, plaintiff, a grinder and chipper then employed by the Northwest Foundry and Furnace Company in Portland, Oregon, was seriously injured because of the disintegration of a grinding wheel which he was using. That is the basis of the action brought below by plaintiff against the Simonds Abrasive Company, defendant, manufacturer of the wheel.*fn1 The jury returned a verdict of $126,182.24,*fn2 and defendant has appealed to this court.

The following are the facts, viewed in a light most favorable to plaintiff. Plaintiff's duties on the day of the accident consisted of grinding off the rough edges from castings by the use of an abrasive wheel attached to a portable pneumatic grinder. This operation is known in the industry as a "snagging operation." The record discloses that plaintiff reported for work at Northwest Foundry at midafternoon on the day of the accident, relieving one Williams, who had been performing identical duties on the prior shift. There is evidence that Williams had attached a new abrasive wheel to the grinder that morning. Plaintiff testified that one-half inch thereof had been ground off during the day. There is an abundance of evidence that plaintiff is an experienced grinder, a conscientious workman, and that he was highly regarded by his fellow employees and by the plant superintendent. There is also evidence that Williams was an experienced grinder. Plaintiff's testimony is that before commencing his snagging operation, he had inspected and tested the grinder and wheel in the customary manner. About a half minute after he started to grind the casting, the abrasive wheel suddenly shattered into many pieces, some of which tore through both of plaintiff's leg three or four inches above the ankles.

Plaintiff was unable to prove, by direct evidence, that any defect existed in this particular wheel. Microscopic tests conducted at Massachusetts Institute of Technology were inconclusive. Plaintiff, however, charges defendant with negligence in its method of manufacture, and in its failure to test its products properly. The nature of the evidence with reference thereto will be discussed later in this opinion.

In an attempt to eliminate the probability of intervening causes, and thus bolster the inference that it was defendant's negligence which caused the disintegration of the wheel, plaintiff introduced evidence as to the life history of this wheel. Cf. Diesbourg v. Hazel-Atlas Glass Co., 3 Cir., 1949, 176 F.2d 410. The record shows that on January 19, 1945, a Portland jobber and distributor received an order from plaintiff's employer for 36 abrasive wheels. The jobber apparently had no wheels in stock and ordered them from defendant-manufacturer. The wheels were shipped to the jobber who, in turn, delivered them to plaintiff's employer on March 1, 1945. The testimony of the general manager of the Portland jobber, taken by deposition, is that the wheels were probably held in its warehouse no longer than 10 or 15 days. The testimony of the superintendent of Northwest Foundry, plaintiff's employer, is that the wheels were kept in a safe place until they were used. The plant maintenance man at Northwest Foundry stated that the grinders were in good condition and were tested properly. There was evidence from which the jury could find that the grinder, at the time of the accident, was operated at a speed less than the maximum recommended by defendant-manufacturer.

Defendant's principal argument on appeal is that there was no evidence of negligence to support a verdict for plaintiff. Its position is that the lower court erred in not granting a judgment n.o.v. or, in the alternative, in not granting a new trial.

Since jurisdiction is based on diversity of citizenship,*fn3 a preliminary word on the applicable law is in order. We look first to the conflict of law rules of Pennsylvania. Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477. Applying orthodox conflict of law rules, Pennsylvania would refer to the law of Oregon, the place of the wrong.*fn4 Oregon cases have been found either expressly adopting or disapproving the doctrine of MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696. This court has held, however, that the doctrine of that case has been so widely accepted that it has now become a part of the general law of torts.*fn5 It has found expression in Section 395 of the Restatement of the Law of Torts. Hence, in the absence of any decisions to the contrary, we assume it to be the law of Oregon*fn6 that there is a duty on a manufacturer of a chattel to use reasonable care in manufacturing whenever there is an unreasonable risk that the chattel, if defectively made, will cause substantial harm. See Restatement, Torts, ยง 395.

Defendant argues on appeal that there was no evidence of negligence because no witness identified any defect in the wheel. Defendant's version of the law would cast upon a plaintiff in a case such as this an almost impossible burden; for where an abrasive wheel disintegrates, direct proof of the existence of a defect might be virtually impossible. See Zesch v. Abrasive Co. of Phila., 1944, 353 Mo. 558, 183 S.W.2d 140, 156 A.L.R. 469. The burden of the scientific limitations of our society should not be cast on injured plaintiffs in circumstances such as existed in the instant case.

Plaintiff's proof of negligence rested in great measure on the testimony of an expert in the strength of materials. The expert declared that defendant's method of manufacture, known as the "closed setting," was conducive to the formation of internal flaws, in that gases formed during the curing operation were not permitted to escape as freely as they would in the open method; this entrapment of gas results in a plane of cleavage, an internal fissure or crack, in which no bond occurs between the adjacent grits on each side. The opinion of the expert was that such a defect would result in the disintegration of the wheel when used in the customary manner.

The expert also testified that defendant was negligent in failing to utilize proper tests. It is admitted that defendant, as well as all other members of the abrasive wheel industry, employed only one test to determine internal flaws - the spin test. A wheel subjected to this test is spun at a rotational velocity fifty per cent greater than its highest recommended operating speed. This test is designed to ascertain whether the wheel can properly withstand centrifugal stress. The defendant failed to use due care, in the opinion of the expert, in not attempting to test for the two other stresses which must be expected in a snagging operation, i.e., stress caused by vibration and stress caused by impact or shock. Equipment has been designed to test for these stresses in other industries, and is in common use. Similarly, in the opinion of plaintiff's expert, equipment could be and should be designed to test abrasive wheels. Testimony which may have been most persuasive to the jury was the admission by defendant's director of research and development, on cross-examination, that a wheel used in a snagging operation may have practically no safety factor because of the unusual stresses to which the wheel would be subject.

We believe there was sufficient evidence from which a jury could determine that defendant failed to use due care.

Defendant contends, however, that this evidence is inadmissible because plaintiff's expert was not qualified to testify with respect to practices in the abrasive wheel industry. It is admitted that the expert, one Dr. Peskin, is a graduate engineer, with extensive experience in industry. His specialty is the strength of materials, and he has had considerable theoretical training in that field at Massachusetts Institute of Technology. He was an instructor at that institution, and received his Doctor of Science degree there in 1936. Defendant asserts that Dr. Peskin was not qualified to testify because he has had no practical experience in the manufacture of abrasive wheels.

Defendant's arguments are addressed to the wrong forum. The qualification of an expert is a matter peculiarly within the discretion of the trial judge. It has been reiterated time and again that an appellate court will reverse on this ground only when the decision of the trial judge is clearly erroneous.*fn7 Bratt v. Western Air Lines, 10 Cir., 1946, 155 F.2d 850, 166 A.L.R. 1061, certiorari denied 1946, 329 U.S. 735, 67 S. Ct. 100, 91 L. Ed. 635; Diesbourg v. Hazel-Atlas Glass Co. supra; Hencken v. Bethlehem Municipal Water Authority, 1950, 364 Pa. 408, 72 A.2d 264.*fn8 It is hardly within the province of this court to determine what is the optimum degree of specialization in the scientific world.We note in passing, however, that the wider perspective of the broad specialist may be of invaluable assistance to the trier of ...


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