Hastings, Chief Judge, and Castle and Fairchild, Circuit Judges.
Appellee, Olivero Bustamante, instituted a diversity tort action in the district court against the Indiana Harbor Belt Railroad Company, his employer, and the Carborundum Company, to recover damages for personal injuries he sustained in the course of his employment by the railroad while using a product manufactured by Carborundum.
Bustamante's complaint alleged three alternate causes of action. The first, against the railroad company, was settled before trial, the railroad agreeing to pay Bustamante $20,000 upon a covenant not to sue. The second count alleged that Carborundum failed to test its product, a grinding wheel, properly and that Carborundum negligently manufactured it. The third count alleged that Carborundum had breached implied warranties of merchantability and reasonable fitness and that such breach was the proximate cause of Bustamante's injuries.
The case was submitted to the jury under both causes of action, and the jury returned a verdict against Carborundum in the amount of $25,000 (later reduced to $5,000 on motion of Carborundum.)
Carborundum has appealed from the judgment on the verdict in favor of Bustamante and from the denial of its post-trial motions.
Bustamante was employed by the railroad in one of its roundhouses as a grinding machine operator. On October 24, 1961, in the course of his work, he installed a new grinding wheel, manufactured by Carborundum, on his portable grinding machine. The grinding wheel consisted of an eight inch circular steel plate to which an abrasive flat cylinder two inches thick had been bonded by a resin cement. This was attached to the grinding machine by a spindle passing through the center of the wheel. A protective cover, which exposed only the abrasive face of the wheel, was mounted over the wheel.
When using the grinding machine to grind the railroad frog, or track crossover, on which he was working, Bustamante stood astride the frog, bent over at the waist with both hands grasping the protective cover, and moved the grinder horizontally along the frog. With the grinder in this position, the grinding wheel was shielded from Bustamante by the protective cover.
On the day following his installation of the new grinding wheel on his grinder, Bustamante continued to work on the frog. After he had operated the grinder normally for one-half hour, the wheel disintegrated, and a fragment from it seriously injured his arm.
The cause of the disintegration of the wheel was an issue at the trial. Under Bustamante's theory of the case, because of a defect in the wheel, either a fragment broke off the wheel as it was being used, causing an imbalance and further disintegration or the wheel disintegrated spontaneously due to an insufficient or weak bond fixing it to its steel plate.
Carborundum attempted to show that its wheel was safely constructed and properly tested and that the cause of the breakage was not due to defective construction of the wheel. An inference to be drawn from its position was that Bustamante had dropped or misused the grinder, thus causing the breakage himself. Bustamante, however, denied this unequivocally, and no witness could relate whether or not the grinder had been dropped or misused before the accident.
On appeal, Carborundum contends there was no evidence to prove a causal relationship between the alleged defect in the grinding wheel and Bustamante's injury and that there was no evidence to prove Carborundum had failed to test the grinding wheel properly or that it was not reasonably fit for its intended use. It is further asserted that the trial court erred in submitting the case to the jury under a theory of res ipsa loquitur, in allowing Bustamante's breach of warranty claims to be submitted to the jury, in overruling objections to hypothetical questions and in limiting cross-examination. Finally, it is contended that the verdict of the jury was contrary to the manifest weight of the evidence.
Carborundum urges that, because of a failure to prove a causal relationship, the trial court committed error in submitting to the jury Bustamante's allegations of specific negligence regarding testing and fitness of the wheel for its intended use.
There was testimony that the phenolic resin used to bond the abrasive wheel to the steel plate backing it was applied to the plate manually, by a spatula. When manufacture of a wheel was completed, Carborundum tested it for weakness and poor adhesion by mounting the wheel on a machine similar to that on which it was intended for use. The wheel was ...