The opinion of the court was delivered by: Wise, District Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A trial of the issues in this case was had before the Court
without a jury on December 5, 1966. Upon a review of the
pleadings and after hearing all of the evidence presented by the
plaintiff and the government, as well as argument of counsel, all
of which were fully considered, this court makes the following
findings of fact and conclusions of law:
1. Plaintiff, a resident of the State of Illinois, filed this
action pursuant to the Federal Tort Claims Act,
28 U.S.C. § 1346(b), for injuries allegedly caused by the negligence of
defendant's agents or employees acting within the scope and
course of their employment.
2. During a period from two months to one year prior to May 6,
1961, one Leonard Belson, d/b/a Paxton Salvage Company, at
Paxton, Illinois, purchased as scrap certain hydraulic shock
absorbers along with other scrap material from Chaunte Air Force
Base, Rantoul, Illinois. These hydraulic shock absorbers were
previously a part of the landing gear of an airplane from Chanute
Air Force Base. The contract of sale specified that the material
was purchased on an "as is" basis and that it was sold as scrap
without warranty that it was fit for that purpose.
3. Plaintiff was an employee of said Leonard Belson and on the
date of the accident, May 6, 1961, was engaged in cutting one of
these shock absorbers with an acetylene torch when it "exploded."
4. The landing gear shock absorber contained hydraulic fluid
which will not explode when heat is applied to it under
5. Said landing gear shock absorbers are not inherently or
6. That the plaintiff had not vented the shock absorber on
which he was working at the time of the accident, nor did he know
it to be vented and had assumed it was like the one the day
7. Plaintiff's employer and foreman, two experienced welders,
testified that it is the standard safe practice among welders to
make sure that any sealed container has an air hole in it before
applying to it an acetylene or other cutting torch. This
procedure is followed so as to prevent thermal expansion and
avoid the danger of an explosion. Plaintiff's employer and
foreman stated that it was their practice to follow this
procedure in their business before cutting on landing gear shock
absorbers similar to the one involved in this case.
9. That plaintiff failed to exercise reasonable care for his
own safety and was therefore contributorily negligent.
10. The proximate cause of the accident was plaintiff's own
failure to exercise reasonable care for his safety at the time
and place in question, and such failure amounted to negligence on
his part which ...