Biggs, Chief Judge, and Forman and Freedman, Circuit Judges.
Plaintiff, an employee of the Tennessee Valley Authority, was severely injured while working as an equipment mechanic at a concrete batching plant in Tennessee. He brought this diversity action against defendant alleging that it was negligent in designing and manufacturing the plant. At the close of plaintiff's case the court below granted defendant's motion for a directed verdict under Rule 50 on the ground that no negligence by defendant had been shown, and if there had been any negligence it was superseded by the negligence of TVA.
The evidence viewed as it must be in the light most favorable to the plaintiff presents these facts. On March 27, 1961 TVA after competitive bidding awarded a contract to defendant to design and manufacture a concrete batching plant which was to be used on the site of the Melton Hill dam project in Tennessee. Although TVA described its general requirement, the actual plans, including the design and arrangement of the bins, were made by defendant. When the design was completed the plans were submitted by defendant to TVA which approved them with the express statement that it did not thereby relieve defendant of any part of its responsibility for the correctness of the design, the details and dimensions. In any event TVA's approval of the plan would not absolve defendant if it was negligent in the performance of its work of design and manufacture of the plant. After approval of the plans, the component parts of the plant were manufactured by defendant and shipped to the site where they were assembled by TVA.
The purpose of the plant was to provide concrete for the construction of the dam. The bin portion of the plant with which we are concerned was used to store a mixture of sand, rock and stone, which is known as "aggregate", to be released as needed at another part of the plant where it was mixed with cement to form concrete. The sand, rock and stone was gathered from underground storage and placed on a conveyor which carried it upward on an incline above the top of the two bins more than forty feet above the ground. At that point the aggregate was dropped onto a horizontal shuttle conveyor which distributed it into the two bins by moving forward to one bin and in reverse to the other bin. Each bin was eleven feet wide, thirty-five feet long and forty-one feet high. The bins were constructed of fabricated metal, and were each equipped with a maintenance platform made of hatched steel, ten feet above the ground. The bins were identical in design and were three feet apart. The sides of the bins which faced each other slanted inward beginning at a point substantially above the maintenance platform and the platform extended to the outer line of the top of the bin. This may be described as forming a right triangle, with the maintenance platform constituting the base, the sloping side of the bin as the hypotenuse, and the imaginary projection from the point where the side slope began to the maintenance platform as the altitude of the triangle. On the level of the maintenance platforms were the scales and releasing machinery which were used to weigh the aggregate and release it as it was needed.
The design of the plant was unique in its provision for two separate bins fed by a single conveyor, instead of the usual plan of a single bin supplied directly by a conveyor.
Some spillage is normal in batching plants, but when this plant was placed in operation more than the ordinary amount occurred. A good deal of this was caused by the failure of the horizontal shuttle at the top of the bins to function properly in reverse. This spillage fell into the open space between the two bins and constituted a danger to the workmen while they were on the maintenance platforms or crossing from one platform to the other. The rocks and stones ranged from three-quarters of an inch to six inches in diameter and were up to eighteen inches in length. TVA sought to reduce the excessive spillage by replacing the horizontal shuttle conveyor with a "pants leg chute", so-called because of its resemblance to a pair of trousers. By this device the aggregate was dropped into the top of the pants leg chute from which it automatically fell into one or the other of the two legs which led directly into a bin. Spillage continued, however, and to prevent it from striking workmen below TVA erected a roof over the three foot open space between the two bins. The roof also served to winterize the bins -- which the defendant knew would be necessary. It was made of wood covered with corrugated metal and was pitched on an angle to avoid accumulation of spillage by deflecting it off to a safe area on the ground. At the same time, to facilitate the passage of workmen between the two platforms and to avoid their falling at the edge, TVA also constructed a wooden floor which bridged the three foot space. The roof and wooden floor were designed and installed by TVA, although there is disputed testimony that employees of defendant had observed it because they were physically present at the plant site while this work was done. The roof was in use from the time of its completion on September 20, 1961 until the accident on November 2, 1961. In this short interval TVA twice cleaned away accumulations of aggregate, although it was not visible either from the ground or from the maintenance area.
It appears to be agreed on all sides that at the time of the accident plaintiff was standing on the connecting wooden floor between the two maintenance platforms. The roof suddenly collapsed and plaintiff was struck by portions of the roof and by accumulated aggregate which fell with it.
While it is true that a manufacturer is not an insurer of the product which he designs,*fn1 nevertheless he must use reasonable care to avoid creating an undue risk of harm to those who might reasonably be expected to use or be affected by it.*fn2 What is reasonable care must in turn be decided in the light of what was reasonably foreseeable at the time the product's design was put in use. While a manufacturer is not required to be clairvoyant he is rightly held to the standard of an expert in regard to his own product.*fn3 Foreseeability, of course, does not require that one must foresee the precise hazard or envisage the harm in the detailed manner in which it occurred; it is enough if some harm of a like general character is foreseeable.*fn4 The law of Tennessee by which this case is governed is in harmony with these principles.*fn5 It is also clear that in Tennessee privity has been abandoned as a requirement in a suit for negligence.*fn6
These general principles when applied to the facts in this case show that the question of defendant's negligence was clearly for the jury. Spillage from a conveyor system was common even in the best designed plants. Yet defendant designed a plant that was unique in having separate bins fed by one conveyor system and provided no protective cover for the maintenance platforms situated thirty feet below the point of expected spillage. Spillage did in fact strike the maintenance ...