Before LUMBARD, Chief Judge, and CLARK and FRIENDLY, Circuit Judges.
This action was brought in the District Court for the Southern District of New York by Carlson, a citizen of Texas, against defendant, a New York corporation, to recover for an injury suffered in Texas and allegedly caused by defendant's negligent manufacture of a chain hoist. The appeal presents questions whether there was sufficient evidence of defendant's negligence to support the jury's verdict for the plaintiff and whether certain testimony offered by plaintiff was properly received. We affirm.
Carlson was employed as a millwright by the Austin Company in Houston. On the morning of April 20, 1950, he was engaged, along with several co-workers, in inserting heavy pistons into the cylinders of a large machine press. Each piston was brought to "working distance" of the press by a large overhead crane. In order to achieve the delicate control over the piston necessary for the final installation, the workers would then attach a chain hoist to the crane. The basic physical principle of the hoist is that of the lever. An external wheel, manipulated by an attached chain, turns a set of gears, which turn another wheel to which the load is attached by another chain. When one pulls on the hand chain so as to cause the hand wheel to move in one direction the load is raised, and in the other direction, lowered. In the so-called one-ton hoist here involved, which in fact is geared to handle loads of 3,000 pounds, the hand chain has to be pulled about three feet to move the load one inch. Unlike a simple block and tackle, the chain hoist also contains a braking device, so that when the operator ceases to pull on the hand chain, the very weight of the load forces a friction disc attached to the hand wheel against another friction disc and prevents further motion of the load.
The piston involved in the accident had a diameter of twelve inches throughout most of its length of 30 to 36 inches and weighed about 2,200 pounds. On the day of the accident twelve similar pistons had been installed by use of a hoist with "a long pull chain." When the time came to install the thirteenth piston, one of Austin's employees removed from a packing crate a new one-ton aluminum hoist manufactured by defendant; this had a shorter chain. The hook at the end of its load chain was affixed to an eyebolt which had been screwed into the head of the piston. Plaintiff's witnesses testified, without contradiction, that chain hoists required no preliminary adjustment or testing and that it was customary to put them to use just as they came from the packing crate.
Carlson was stationed on some scaffolding adjacent to the steel die or table, to which the piston was to be lowered from about twenty inches above. Upon a signal from him and another member of the crew, the hoist operator pulled the hand chain in the down direction for about three feet. At that moment Carlson's hands were resting on the die directly under the piston, he being engaged in wiping some grease and foreign matter from the surface of the die; if the hoist had been working properly, the twenty inch descent would have taken several minutes and Carlson would have had ample time to complete this task. Instead the piston fell the entire twenty inches to the die and landed on plaintiff's left thumb and his right thumb, index finger, and middle finger. All these eventually had to be amputated in major part.
The piston was removed from Carlson's hand by the overhead crane. That this could be done ruled out the possibilities that the accident was caused by some defect in the attachment of the load chain to the piston or in the crane itself. Examination of the hoist revealed that the load chain was entirely paid out; what had fallen was the load chain and the attached load. It was undisputed that if the hoist had been functioning properly, the operator could not have caused the abrupt fall by improper manipulation of the chain.
The record is not altogether clear as to what happened next. Defendant read in evidence a deposition by Green, construction superintendent for the Austin Company, in which Green said that, having first ordered an ambulance from his office, he arrived at the scene of the accident three to five minutes after its occurrence; that the piston was still hooked to the hoist - "Whether the piston was up or down I wouldn't say"; that he operated the hoist to raise and lower the piston, which it did successfully; and that he then had the hoist taken to his office where it remained for three or four days until he sent it out for testing. Plaintiff's witness Merriman, the signalman of the crew, testified that, after having arranged for the crane to remove the piston from Carlson's hands, he ran down to see Carlson, then busied himself looking for the ambulance, and, when he next saw the hoist, 10 or 15 minutes after the accident, found it lying on the ground, disassembled, with Cannon, the Austin Company's general foreman, and Griffith, the night foreman, standing over it and with Cannon holding a friction disc. This disc bore some black marks, which Merriman termed "a heat or what we call in our trade a guald mark," caused by "intense friction or heating being applied." Clearly Merriman's and Green's testimony cannot be wholly reconciled.
Having sought to negate all causes of the accident other than a defect in the hoist, plaintiff endeavored to indicate what the defect might have been. Merriman was allowed to testify, over an objection which we will discuss below, that if the elastic nut which held the hand wheel on the central shaft of the hoist were loose, the two friction discs would not hold the full capacity of the load, and that he had seen other hoists in which a cotter pin had been inserted behind the nut to prevent such slippage. Stewart, a consulting engineer, corroborated this. In addition, he had examined the friction discs and found that each showed heavy black circles of a resinous material; this, he said, was the result of the release of a bonding agent induced by heat generated by friction, "a dynamic type of braking operation * * * indicative of the development of a brake fade situation" which would cause slippage. Stewart also advanced an alternative theory. On the basis of examination of the braking mechanism of another hoist of the same model, he concluded there was a possible defect in the ratchet, a circular wheel having teeth, and in the pawl, a tongue-like strip that fitted into the teeth. When the hand wheel was turning in the up direction, he detected a tendency for the tip of the pawl not to slip into one of the teeth but rather to get hung up on the end of the wheel. He said that then the heavy downward pressure of the load would cause the ratchet to reverse itself and begin to move rapidly in the other direction and that the friction discs, designed for static braking, might be insufficient for such a dynamic braking situation.
In addition to the deposition of Green as to his successful operation of the hoist immediately after the accident, defendant's case was as follows: Shilstone, the engineer to whom Green sent the hoist for testing, described extensive operating tests he had made and said that at no time did the hoist malfunction in any degree. Cotesworth, defendant's service manager, testified that the hoist was received back from Texas in December, 1950; that he examined it in April, 1951; that the hoist operated properly; that he opened the hoist and found it "in good condition," although what he called "the washers," which we take to be what other witnesses called the friction discs, "were encrusted with black scale and showed uneven braking surfaces." Defendant sought to counter plaintiff's evidence with respect to the nut by testimony of its chief engineer that if a substantial amount of weight was on the load chain, the hand wheel would be forced against the friction discs regardless of how loose the nut was; this was corroborated by tests run by another engineer in defendant's employ. The chief engineer also testified that the type of elastic nut which defendant employed was in standard use, and that the small size of the shaft would make it difficult to install a cotter pin of adequate size. The same witness sought to counter Stewart's ratchet and pawl theory on the basis that the ratchet and pawl are part of the operative mechanism only when the load is being raised rather than lowered; however, the witness conceded on cross-examination that safe operation demanded that the ratchet be stationary on the downward pull, although he went on to say that if for some reason the pawl was not inserted in the ratchet at the beginning of the downward operation or had popped out, this still could not account for such malfunctioning as here occurred.
Defendant sought also to explain how the accident could have happened if there had been no defect in the hoist. It suggested that if the fastening at the upper end of the piston was not an eye but a hook (or an eye which had opened so as to be a hook) - a possible, though highly dubious, inference from some language in Merriman's testimony which he later disclaimed - this hook might have become entangled with the slack portion of the load chain, thereby transferring the weight and depriving the braking mechanism of any force, so that the load would drop as soon as the operator released the hand chain. However, cross-examination showed that the physical relationship between the fastening and the slack part of the load chain made such a transference impossible; and defendant has not seriously pressed this point on appeal.
At the end of plaintiff's case defendant moved to dismiss; the judge reserved decision. At the conclusion of the entire case defendant moved for a directed verdict and for dismissal of the negligence count; the judge again reserved decision. Later defendant moved to have the verdict set aside; this the judge denied.
On most matters we must here apply the law of New York, including, of course, its conflict of laws, Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 1941, 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477. New York would look to Texas law for all "substantive" rules. We are not required to decide whether the reference to New York law ought include the quantum of proof required to sustain a jury verdict, see Dick v. New York Life Ins. Co., 1959, 359 U.S. 437, 444, 445, 79 S. Ct. 921, 3 L. Ed. 2d 935, or, if it ought, whether New York would look to its own rule or that of Texas, see American Law Institute, Restatement of the Conflict of Laws, § 595, comment b; Clark v. Harnischfeger Sales Corp., 2d Dept. 1933, 238 App.Div. 493, 264 N.Y.S. 873; Anderson v. Material Co-ordinating Agency, Inc., Sup. 1946, 63 N.Y.S.2d 324; Franklin Sugar Refining Co. v. Lipowicz, 4th Dept. 1927, 220 App.Div. 160, 165, 221 N.Y.S. 11, 15, affirmed 1928, 247 N.Y. 465, 160 N.E. 916, 59 A.L.R. 1414. For the parties have not urged and our own study has not indicated that, in cases like the present, any different test of sufficiency is applied by the Federal courts, the New York courts or the courts of Texas.
Analysis is aided by recognizing that plaintiff had two separate problems of proof. He was obliged to show, first, that his injury was caused by a defect in the hoist, and, second, that the defect was attpibutable to defendant's negligence. See the useful discussion in 2 Harpen & James, The Law of Torts, §§ 28.12 and 28.14. Clearly plaintiff presented sufficient evidence to meet his burden on the first proposition. "The plaintiff was not required to offer evidence which positively excluded every other possible cause of the accident," Rosenberg v. Schwartz, 1932, 260 N.Y. 162, 166, 183 N.E. 282, 283, although, in fact, Carlson came close to doing so. If the evidence did not utterly exclude maltreatment of the hoist after it had left defendant's factory, improper fixation of the hoist to the crane, faulty manipulation by the hoist operator, malfunctioning of the crane, or a defect in the eyebolt or its attachment, there was at least a vast preponderance in plaintiff's favor. To be sure, there was also the testimony of Green, Shilstone and Cotesworth as to the proper functioning of the hoist after the accident. However, the jury was not required to believe Green, whose testimony was inconsistent with Merriman's in some respects and whose story that he then and there manipulated a heavy piston with a hoist that ...