Castle, Chief Judge, Major, Senior Circuit Judge, and Hastings, Circuit Judge.
Plaintiff, Joseph Zahora, appeals from the entry of summary judgment by the district court in favor of defendant, Harnischfeger Corporation. We shall summarize the salient facts relevant to this appeal.
This diversity action was instituted by plaintiff to recover damages for personal injuries sustained by him on April 20, 1965 while attempting to determine the cause of an electrical power failure in the bridge of an overhead crane manufactured by defendant corporation for Youngstown Sheet and Tube Company plant at East Chicago, Indiana. Defendant corporation is incorporated under the laws of the State of Wisconsin, with its principle place of business in a state other than the State of Indiana. Youngstown purchased the crane in July, 1963 and accepted it in April, 1964.
Defendant corporation was not obligated by contract or otherwise to install, maintain, repair or operate the crane in question. June, 1964, almost one year prior to the complained of mishap, represents the last date any employee of defendant had dealings with Youngstown pertaining to this crane.
At the time of the accident, plaintiff was an electrician in the employ of a third party electrical contractor, Fischbach, Moore and Morrissey. This concern had been retained by Youngstown to maintain and to operate the crane. Plaintiff was not a regular crane maintenance man for Fischbach, and the date of the accident signifies his first encounter, as a Fischbach employee, with a Youngstown crane.
This encounter with its unfortunate ending was prompted when a Fischbach foreman, Joe Ferro, directed plaintiff to leave his main floor work post to determine why a bridge of the crane was malfunctioning.
According to plaintiff's deposition, plaintiff and Ferro went to the top of the bridge to check the crane's fuse and control cabinet in an effort to discover the trouble. Failing to uncover any problem with the cabinet, the two men descended to the crane's operating cab to inspect its drum controls. Finding no irregularities, they returned to the top of the bridge. At that point, Ferro suggested that plaintiff go down to a repair platform situated at the northwest end of the bridge to check whether the collector's shoes on the northwestern side of the bridge were making sufficient contact with the hot rails on the side of the building.
While plaintiff was completely within the confines of the repair platform, the crane operator, Lester Shinneman, temporarily activated the bridge's power by causing the trolley to collide with the north end of the building. This impact caused a sufficient reaction with the rails to create enough power to move the bridge. Nothing a spark in either the collector's shoes or the rails during this procedure, plaintiff decided he should "* * * see what is wrong with these shoes." Prior to making this investigation, he stated that he warned the crane operator "Don't you dare move anything."; Shinneman, who was inside of the enclosed cab, allegedly noded in response to this admonition. After issuing this exhortation, plaintiff attempted to hit the shoes with a two-by-four (2 x 4) he found on the platform. Unable to reach the shoe from a vantage point on the side of the platform, plaintiff extended a portion of his body out over the repair cage. After tapping the shoes a few times, plaintiff heard something moving and at that moment was crushed by the crane's cab as it proceeded in a northerly direction.
Shinneman's account of the events leading up to the mishap is substantially in accord with the plaintiff's version. Aside from a discrepancy concerning where on the crane the foreman and plaintiff met the operator prior to the accident, the only significant variance between the two depositions springs out of silence rather than overt conflicts in statements.
The operator's deposition does not mention the plaintiff's alleged warning nor does it allude to the alleged response thereto. In addition, Shinneman indicates that he did look to the left (north), in the direction of the platform from which the plaintiff was working, and stated that "* * * there was nobody in sight." When asked whether it was possible for someone to be barred from the operator's vision due to the construction of the cab, Shinneman answered, "Well, it was probably by that [cab] door [bottom half of the door was solid] being there like it was."
Based essentially upon these facts, plaintiff charged defendant Harnischfeger with negligence and/or wanton and/or willful misconduct in the design, manufacture, installation, maintenance and repair of the Youngstown crane and its supporting structure. Plaintiff further alleged that defendant Harnischfeger breached both express and implied warranties in the manufacture and sale of the crane and its supporting structure. Plaintiff contends that as a proximate result of this conduct he sustained injury while engaged in the performance of his work duties. Thereafter, defendant moved for summary judgment.
The district court granted defendant's motion after examining the affidavits in support of the motion, the pictures of the overhead crane and the depositions of the operator and plaintiff. From these materials, the trial court concluded that defendant was "under no duty to insure against injury to a repairman who might force his body half way out of the repair cage into the pathway of the trolley to examine a shoe while the trolley and cab were in operation in close proximity." The court further concluded that the alleged defective design of the crane could not have proximately caused the mishap and injuries complained of. In making this determination with respect to the issue of proximate cause, the court surmised that the sole proximate cause rested in the operator's failure to heed plaintiff's warning not to move the cab or trolley and in the operator's failure to look in the direction of the platform when he moved the trolley and cab.
The issue before us is whether the district court properly applied Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A., in granting ...