will reach those whose safety depends upon their having it. 'Here, as in every case which involves the determination of the precautions which must be taken to satisfy the requirements of reasonable care, the magnitude of the risk involved must be compared with the burden which would be imposed by requiring them (see § 291), and the magnitude of the risk is determined not only by the chance that some harm may result but also the serious or trivial character of the harm which is likely to result (see § 293). Since the care which must be taken always increases with the danger involved, it may be reasonable to require those who supply through others chattels which if ignorantly used involve grave risk of serious harm to those who use them and those in the vicinity of their use, to take precautions to bring the information home to the users of such chattels which it would be unreasonable to demand were the chattels of a less dangerous character * * * In addition to this, if the danger involved in the ignorant use of a particular chattel is very great, it may be that the supplier does not exercise reasonable care in entrusting the communication of the necessary information to even a person whom he has good reason to believe to be careful. Many such articles can be made to carry their own message to the understanding of those who are likely to use them by the form in which they are put out, by the container in which they are supplied, or by a label or other device, indicating with a substantial sufficiency their dangerous character. Where the danger involved in the ignorant use of their true quality is great and such means of disclosure are practicable and not unduly burdensome, it may well be that the supplier should be required to adopt them.' (Emphasis supplied) The factual question of whether Y. & T. had given any effective warning in this case was covered by our charge to the jury which has not been attacked by this motion.
Where the truck is intended for immediate use the lessor owes a duty to the person who may use the chattel to make it safe for him or to warn him of any danger. The Restatement at § 408 states as follows:
'Section 409. Lease of Chattel for Immediate Use. 'One who leases a chattel as safe for immediate use, is subject to liability to those whom he should expect to use the chattel, or to be in the vicinity of its probable use, for bodily harm caused by its use in a manner for which, and by a person for whose use, it is leased, if the lessor fails to exercise reasonable care to make it safe for such use or to disclose its actual condition to those who may be expected to use it.'
Comment (a) of Section 408 states in pertinent part:
'a. The fact that a chattel is leased for immediate use makes it unreasonable for the lessor to expect that the lessee will do more than give it the most cursory of inspections. The lessor must, therefore, realize that the safe use of the chattel can be secured only by precautions taken by him before turning it over to the lessee. If the chattel is made by the lessor, he is subject to liability under the same rules as are stated in Sections 395 to 398, as determining the liability of a manufacturer of chattels to be put upon the market.' (Emphasis supplied)
The issues of whether the 'magnitude of the risk' outweighed the burden of warning the plaintiff of the danger and whether this chattel was intended for immediate use were questions for the trier of fact, and we find the jury's decision reasonably supported by the evidence. Allis Chalmers Mfg. Co. v. Wichman, 220 F.2d 426 (8 Cir., 1955) cert. den. 350 U.S. 835, 76 S. Ct. 71, 100 L. Ed. 745 (1955); and Heichel v. Lima-Hamilton, supra.
The plaintiff was the unfortunate victim of an economic bargain which sacrificed his safety to the more expedient needs of closing a sale to make a profit. We cannot say as a matter of law that the evidence contained in this record does not support the verdict.
AND NOW, this 7th day of August, 1963, the defendant's motion for judgment notwithstanding the verdict is denied.
Supplemental Opinion Sur Defendant's Petition and Request to Amend Opinion.
In our Opinion filed August 7, 1963, in this case, we denied the defendant's motion for judgment n.o.v. One of the bases of our decision was the defendant's failure to move for a directed verdict at the close of all the evidence. This step is mandatory before the conclusions of a jury can be attacked by any post-trial motion under Fed.R.Civ.P. 50(b).
During the course of this extremely well tried case discussions with counsel were held in chambers which were not transcribed. Counsel for the defendant has submitted an affidavit which sets forth his recollection of what transpired at these meetings. The subjects pursued by both parties were confined to legal argument and settlement.
On May 1, 1963, at about 4:45 p.m., counsel for the defendant deposited a memorandum of law with our clerk. The next morning at 9:30 a.m., counsel for the defendant presented his points for charge to the Court in chambers and we considered them and his memorandum of law in the presence of all counsel. At this conference the defendant reaffirmed his legal position which had remained constant throughout the trial.
At 10:30 a.m. we convened the Court and neither party presented any motions for our consideration. After counsel had completed their closing speeches we charged the jury.
In retrospect, the defendant would have us attribute to its memorandum of law
and its point for charge No. 1 (as set forth in our Opinion) the effect and import of a motion for a directed verdict under Fed.R.Civ.P. 50(a). This we cannot do. When a rule is so lucid in its language and emphatic in its conditions, it is beyond our power to relax its strictness without violating the Seventh Amendment. Mutual Ben. Health & Accident Assn. v. Thomas, 123 F.2d 353, 355 (8 Cir. 1941).
Nothing was said at any of these conferences in chambers which in any way precluded the defendant from filing a written motion with specific reasons as required by Rule 50(a). It may very well be that counsel for defendant, having at the last moment filed a written memorandum of law covering the entire case and having been informed by the Court, as he states in his affidavit, that his point for binding instructions would be denied, he assumed that the rigid requirements of Rule 50(a) had been met. As stated in our original Opinion and herein, we are powerless to waive the procedural requirements.
In conclusion, we reaffirm our original Opinion on this procedural question and state further that notwithstanding that determination the defendant's motions would have been denied on the factual issues alone. However, counsel for plaintiff raised the procedural issue at the argument on the post trial motions and we feel compelled to determine that question.
Defendant's Petition, Affidavit and Memorandum have been docketed as requested. The foregoing Supplemental Opinion is incorporated into our original Opinion in this case.