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BRANDON v. YALE & TOWNE MFG. CO.

August 7, 1963

James Cletus BRANDON
v.
YALE & TOWNE MANUFACTURING CO.



The opinion of the court was delivered by: WOOD

The plaintiff was injured when he was struck by falling corrugated cardboard which was stacked 15 feet high in the corrugating room of the Industrial Container Corporation where he was employed as a fork lift operator. The defendant is the manufacturer and supplier of the fork lift truck used by the plaintiff in the stacking operation of the Industrial Container Corporation (Industrial). This fork lift truck, known as a 90' truck, had a lifting capacity of 144' in the air. It did not come equipped with an overhead canopy guard or load back rest which are safety devices intended to protect the operator against falling objects while he is in the driver's seat. An overhead canopy guard is a frame of two curved steel tubes and cross members at right angles thereto, placed over the middle portion of the fork lift truck, and a load back rest is a steel framework, resembling the headboard of an old-fashioned brass bed, placed at the rear of the extension mast, to prevent loads supported by the forks of the truck from falling back.

The stacking was done on wooden pallets by means of the fork lift trucks to a height of 17 to 18 feet in the 'A' room where this accident occurred. First, the cardboard was placed by hand on each pallet, loosely, to a height of five to six feet. Then the fork lift truck operator inserts its blades into the pallet and raises the pallet to the required height and deposits the load and lowers the forks.

 The plaintiff had already stacked two loads of corrugated board in Room 'A' to a height of ten feet. He picked up the third load, raised it and tilted the blade back and drove over to the first two stacks, then stopped in front of these, levelled the blades, raised this stack over the top of the first two stacks and then drove forward and lowered the stack. The forks were 11 to 12 feet in the air at the moment when he started to lower the forks. He had already lowered them about an inch when some of the corrugated boards started to fall backward upon him. At that time the wheels of the truck were stopped on the level floor and the mast was upright and not tilted backward. It had to be upright in order that it be set on the stacks already in place. All of the corrugated boards were in position for stacking.

 When the load began to fall, plaintiff tried to protect himself and grabbed the steering wheel in an effort to get off. He was struck by some of the boards on the back of the neck and rendered a quadriplegic by the injury.

 The plaintiff contends that Yale and Towne Manufacturing Co. (Y. & T.) was negligent in supplying this fork lift truck without the appropriate safety devices designed to prevent just the type of accident which befell him. Y. & T. argues that it notified Industrial that this truck was dangerous to use in the high stacking areas of its plant without these safety devices and that it was not required to go further, and warn each individual operator of this truck.

 The jury returned a verdict for the plaintiff and now Y. & T. seeks a judgment n.o.v. under F.R.Civ.P. 50 (b).

 Y. & T.'s motion for judgment n.o.v. was not preserved as required by Rule 50 *fn1" and for that reason must be denied. Massaro v. United States Lines Company, 307 F.2d 299 (3 Cir., 1962); Godwin v. Brown, 249 F.2d 356, 363 (8 Cir., 1957), and most recently in this District, Provident Tradesmens Bank and Trust Company, Adm'r. et al. v. Lumbermens Mutual Casualty Company et al., D.C., 218 F.Supp. 802.

 Rule 50(b) plainly requires that a motion for a directed verdict at the close of all the evidence is a prerequisite of a motion for judgment n.o.v. Massaro v. United States Lines Company, supra 307 F.2d at p. 303; Eisenberg v. Smith, 263 F.2d 827, 829 (3 Cir., 1959).

 At the close of the plaintiff's evidence the defendant moved for a directed verdict under Rule 50(a). However, since no motion for a directed verdict was made at the close of all the evidence, it was waived and abandoned by the defendant's failure to renew the motion at the close of Y. & T.'s case. Budge Manufacturing Co. v. United States, 280 F.2d 414, 416 (3 Cir., 1960). We cannot accord to the defendant's point for charge number (1):

 'Under all the evidence in this case your verdict must be in favor of the defendant,'

 the effect of a motion for a directed verdict. Such a request is unspecific in its terms and does not meet the requirements of Rule 50(a), Massaro v. United States Lines Company, supra 307 F.2d at p. 303. The motion for judgment n.o.v. is equally unspecific and deficient in its content.

 In addition to this formidable procedural obstacle, there is sufficient evidence with all the reasonable inferences therefrom, taken most favorably to the plaintiff, to uphold this verdict.

 Simply stated, the defendant argues that it is insulated from liability by the fact that Y. & T. apprised Industrial of the danger involved in using this particular fork lift truck in the high stacking operation without the overhead canopy and back rest being attached. It is further argued that Y. & T. had no duty to advise each individual operator of this danger. It was uncontroverted at the trial that this fork lift truck was dangerous to use in the high stacking of corrugated board without the safety devices. This was, so, not only in the opinion of expert safety engineers (n.t. 98-99, 178-179), but also by virtue of the American Standards Association Code for the Operation of Industrial Power Trucks (A.S.A. Code B561-1955), published in 1955, and representing the applicable accepted minimum safety standard in the materials handling industry during the period in issue (n.t. 158-159).

 The material provisions of this Code had been recommended by the Subcommittee on Industrial Power Trucks of A.S.A., under the chairmanship of C. S. Schroeder, Director of Research, Research Division Yale & Towne Mfg. Co., the defendant, representing the Electrical Industrial Truck Assn. (n.t. ...


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