The opinion of the court was delivered by: MURPHY
These are motions made by defendant (1) at the close of all evidence to strike out testimony of an expert witness for plaintiff and to direct a verdict for defendant upon which the court reserved decisions, and (2) after verdict by a jury for plaintiff to set aside that verdict and grant a new trial.
The tragedy that gave rise to this action in tort against defendant, a manufacturer of motorized materials handling equipment, by plaintiff, a mechanic, happened in the City of New York on February 29, 1948. A unit of such equipment manufactured and assembled by defendant, the Karry-Krane KB 532, while being towed by another vehicle, toppled over sideways and crushed its driver, the plaintiff. His injuries had been so severe as to necessitate amputation of an arm and leg. There has been no objection that the amount of damages awarded the plaintiff is excessive. The only questions raised relate to the fault and liability of defendant. It is plaintiff's claim, asserted in this court on the basis of diversity of citizenship, that this fault and liability is grounded on the unsafe design with respect to stability embodied in the crane by the defendant manufacturer. Because defendant's motions raise questions of sufficiency of evidence as well as ones of substantive tort law, proof at trial is summarized.
At the time of the accident, the plaintiff, then 26 years old, was employed by McGrath Stevedoring Company as general mechanic for about a month. Previously, he had worked as general mechanic for another stevedoring company for about two years. Only during his employment with the McGrath firm did he have his first experience with defendant's crane. Plaintiff testified that in the 32 days in McGrath's employ he did operate such a crane on the pier or in the repair shop, but could not specify the number of times. While employed by the prior stevedoring company, plaintiff said he operated rear-wheel-steering vehicles but not the Hyster crane of defendant's manufacture. He also testified that while with McGrath he steered a Hyster crane under tow on two occasions, only one of which he could recall. During his service in the Navy he had worked on submarine Diesel engines.
On the day before the accident plaintiff was told to report to the New Jersey office of his employer. From there he was directed to Pier 84 on the North River where he met Mr. Mozian, a fellow employee. Mozian told him that they were going to take the KB crane number 532 involved in this case to Pier 45. The crane was pushed into the street by another vehicle called a hilo but it was found that the blades in front of the hilo would not hold steadily to the rear of the Hyster crane. The Hyster crane was therefore placed in tow, this by attaching a cargo sling to the front of the crane and to the V frame on the hilo. There has been testimony that this was the usual way to two such a crane.
Plaintiff testified that he mounted the crane and started to steer it along the cobblestone road of 12th Avenue in the City of New York as the hilo pulled it. His testimony is that the crane had a rocking motion while in tow and just prior to the accident. Near 35th Street, scene of the accident, the crane rocked a number of times from right to left and the right wheel came off the ground. He testified that the last four rockings occurred in quick succession within a space equal to a length or two of the crane. On the third of the four rockings, the plaintiff testified, the front left wheel rose higher off the ground than during the two prior ones. He thought this wheel rose four to five inches. He tried to jump off from the right side but was prevented by the gears. He shouted to Mozian, driver of the hilo, and jumped to his left. He himself has no recollection of the impact but there is other testimony that he was found beneath the juncture of the boom and the mast of this particular crane. According to plaintiff, at the time of the accident the crane was three or four feet east of the fence which runs along the westerly side of 12th Avenue. He described the road surface of 12th Avenue as containing depressions and rolls and said that the surface between 35th and 36th Streets was fairly level, with some raised and depressed places. He testified that the cargo sling or tow rope was about twelve or fifteen feet long and taut and that they were proceeding about five miles an hour.
The remaining evidence concerns three important matters affecting defendant's liability: the condition of the road on 12th Avenue, the question of tipping in the light of experience with such a machine; and expert opinion on why the machine tipped or why it could not tip under these circumstances.
With respect to the condition of the road on the day of the accident four years ago, in addition to plaintiff's testimony, Mozian, driver of the hilo, testified that the road was very rough, with bumps and holes. In a statement that Mozian signed shortly after the accident he said that there were neither ruts nor holes in the road nor any objects on its surface. In explanation of that statement Mozian testified that the statement was true because there were no large holes. Mr. Caufield, in charge of maintenance for McGrath, called as witness by defendant, testified that he examined the road after the accident and found nothing out of the ordinary, although in examination before trial he said it was a bumpy road. Mr. McCarthy from the Manhattan Borough President's Office, called by defendant, said that his office had no record of any repairs since the date of the accident and the street was relatively in the same condition as it had been on that day; that it had no holes, ruts or depressions and no blocks are higher than 1 1/2 inches or 2 inches above another and none 4 inches higher. He testified that the road was laid in 1930 with a concrete base and granite blocks with tar between them placed upon sand covering this base. The only work on 12th Avenue, according to his records, was done in 1938 when some car tracks between 35th and 37th Streets were removed.
With respect to proof relating to tipping, Mozian testified that this same crane had tipped before when it was carrying, in conjunction with a hilo, a Mack truck and had been making a turn on a stringpiece. Mr. Caufield, called by defendant, testified on direct examination that he did not know of any tipping of a Karry-Krane without cargo in his six years' experience with McGrath. On cross-examination he said that he had heard of several instances of such tipping when the crane was not carrying a draft and recalled a particular one in New Jersey but had never heard of such tipping on 12th Avenue on level ground. Another witness, Baumann, testified that McGrath never had any trouble as far as stability of this machine was concerned and never heard of such crane tipping over on 12th Avenue going between five and six miles an hour. Mr. Hill, General Sales Manager for defendant, testified that he has never received a complaint on the lack of stability, although defendant has manufactured some 4,000 similar machines and 445 cranes identical to the one involved in this case. There is uncontradicted testimony that this particular crane was sold to the United States government in 1943, shipped abroad and returned to this country in February, 1946. Thereafter it was sold to the A & A Machinery Company and by them to McGrath in 1947 where it was almost in daily use up to the day of the accident.
Three experts were called: Mr. O'Connell, on behalf of the plaintiff; Mr. Fletcher and Mr. DenHartog for defendant. None of these experts had anything to do with design or manufacture of the crane in question. There were several conflicts in their testimony concerning the crane in question. Briefly described, this Karry Krane, Model KB number 532, consists of a fixed boom adjustable only on the vertical plane and supported by an 'A frame' mounted over a front axle which has four wheels. The machine tapers considerably to the rear which is supported by a narrower two-wheeled axle. A counterweight is mounted in the rear to counterbalance weights lifted by the boom in the front. Steering is accomplished by a trunnion arrangement at the rear wheels which gives the vehicle maneuverability to turn within its own length.
As to the mass of the counterweight attached to the rear of the crane in question, Mr. O'Connell said that he took certain measurements of the crane involved in July, 1948, and estimated its weight to be 5,490 lbs. Mr Fletcher, using figures from a blueprint of the counterweight dated September, 1951, estimated its weight at 4,290 lbs. The defendant, by introducing 20 invoices from the foundry which manufactured them, also attempted to prove that the counterweight weighed 4,320 lbs., or according to a blueprint in evidence, an estimated 4,300 lbs.
As to the physical dimensions of certain parts of the crane, Mr. O'Connell testified that he found the distance between the center of the outside front wheel on the left to the center of the outside front wheel on the right was 4 feet 10 inches and the same distance for the rear wheels was 1 foot 8 inches. Mr. Fletcher testified that he also took these measurements and found them to be 5 feet 8 1/2 inches and 1 foot 1 3/4 inches respectively. Plaintiff conceded that Mr. Fletcher's measurements were correct.
As to the location of the center of gravity of the machine, Mr. O'Connell testified that it was located 4 feet from the ground and 5.06 feet behind the front axle. Mr. Fletcher stated that from his examination of the crane his opinion was that the center of gravity was 36.6 inches off the ground and 60.5 inches to the rear of the front axle.
A sharp conflict in expert testimony developed over calculation of the propensity of the crane involved to overturn sideways. The base of the crane assumes the shape of a truncated isosceles triangle, with base in front and truncated apex in the rear. The moment of resistance of the machine to lateral tipping could be computed mathematically, according to plaintiff's expert, Mr. O'Connell, when its weight is multiplied by a lineal distance called a tipping arm or tipping distance. This tipping arm consists of an imaginary line drawn perpendicularly from another equally imaginary line representing one side of the triangular base of the machine, to a point directly below the center of gravity of the machine. The longer this line, the greater would be the stability of the machine, according to Mar. O'Connell. His trigonometric calculation of it was .77 feet, based on his concededly erroneous measurements of the machine. Defendant's expert, Mr. Fletcher, testified that- based on the same erroneous measurement- the correct calculation of this distance was 1.59 feet, or more than twice as long. Fletcher also offered a scale drawing and an actual-size reproduction on a huge sheet of wrapping paper to demonstrate that his calculation of this distance was right and Mr. O'Connell's wrong. There was no evidence as to what the calculation of this distance would be under the concededly correct dimensions taken by Mr. Fletcher.
Three different figures on the tipping angle of the machine were supplied by the three experts. Plaintiff's Mr. O'Connell placed this angle at about 11 degrees which would cause the opposite wheels to rise about 10 1/2 inches. Defendant's Messrs. Fletcher and DenHartog fixed it respectively at ...