*2 ROSS, Circuit Judge. products liability
This is a Appel- case. Collins, William C. and Florence M. lants (herein wife singu- husband and referred to Collins), brought against this action larly as (Goodrich) Company B. F. to re- Goodrich injuries by cover for sustained Mr. Collins exploded wheel after be- when an aircraft ing inflated. Jurisdiction was founded on diversity, being Collins a citizen of Missouri foreign corporation, Goodrich judg- 1332. From a verdict and U.S.C. Goodrich, appeals. ment in favor of Collins affirm. 4, 1970, accident, day of his April On power was a certified aircraft and employed by mechanic Trans World plant (T.W.A.). Together with fellow Airlines Raymond Dare, mechanic Collins was as- a Lockheed Jet signed to service Star air- inspection craft. A visual revealed two tires to be worn and in need of nose wheel Upon mounting two replacement. new began inflating and Dare wheels Collins being left tire. After inflated the wheel assembly suddenly fragmented causing the complained injuries of. the tire and failed wheel assem-
Both it was bly on which mounted had been manufactured Goodrich and sold to testimony established that the T.W.A. operational capacity inflation of the tire 205 and 220 pounds per square was between apparatus (p.s.i.). inch used to inflate cylindrical wheels of this kind consists of a tank sys- air with a dual of hoses and for dispensing tem valves ei- high pressure pressure ther or low air. The system equipped favor of the trial side of the Goodrich court entered pressure low judgment accordingly valve which allows the flow of denied Collins’ with a relief regulated the tire to auto- new motion for a now nitrogen into seeks a gauge at setting matically; by alleging reversal that the trial court erred: level, will failing the tire receive air (a) desired to admit into evidence the p.s.i. indi- only to within experimental results of certain tests con- gauge. The cated on the plaintiff; (b) ducted in instruct- *3 “globe” with a valve not system on an ing jury the affirmative defense of same relief characteristics as possessing the of risk. assumption high valve. of pressure pres- low Use the necessitates the flow of air air thus
sure OF EVIDENCE EXCLUSION to regulated tire be manually. into the at Appellant sought trial to intro in 1968 Beginning T.W.A. established a duce into evidence the results of several requiring safety rule their mechanics to use tests in experimental conducted 1975 in pressure low only regulated nitrogen when assembly tire and wheel which a similar to inflating aircraft tires. Collins testified question properly the one in was inflated purpose that he understood the of this rule high pressure using the side of a nitrogen the danger fragmentation was to lessen of system. The purpose inflation of these accompanies which sometimes overinflation high pressure tests was to demonstrate that a remind of tire. To the mechanics of its air can used without overinflating be the policy, T.W.A. affixed to each tire inflation tending tire and show thus to that the system a which plaque read: WARNING— injured explosion that must have TIRE FOR INFLATION LOW USE PRES- from a defect resulted in the wheel itself. AIR ONLY. SURE This evidence was offered several times and accident, day objection On the of his each time was excluded the began upon inflating by attaching pres- the the low of Goodrich. sure hose to the valve stem of the tire with rulings. find no error in these Evi- pressure gauge p.s.i. the set at 225 After experimental of is not dence tests admissi- minutes, during several which time the tire showing is ble unless a foundational made to pressure had inflated a approximately of were that the tests conducted under condi- p.s.i., pressure Collins removed the low substantially similar to tions actual condi- hose and determined that a new tank of admissibility tions. such of evidence nitrogen required to off top the tire to in the of largely rests discretion the trial the level of p.s.i. desired Collins at- judge and his decision will not be over- high pressure tached the of hose the new showing a clear of turned absent an abuse tank He to the tire. then instructed Dare Ramseyer of discretion. General Motors open high pressure to the shortly valve and Corp., 417 F.2d 1969); Cir. to shut it again. thereafter off Collins then Snyder Manufacturing Co., Lietz v.
removed the hose and the (Mo.1972). In the instant exploded. wheel neither Collins nor case Dare was able to that explo- certainty
On trial Collins contended the as testify length with to the of a sion was caused hidden and unknown high time the hose was releasing assembly, perhaps in the wheel the tire before wheel fragment- defect air into the rim, inclusion in the but nonmetallic offered ed. Plaintiff’s witnesses were likewise un- unequivocally to proof no direct substantiate claim. able to state whether the experiments maintained that the wheel failed the Goodrich valve used in was the same of tire resulting type type due to overinflation the valve used Collins. The high unregulated from use of the valve the used and duration connec- system. The the inflation cause was the side of tion between tire and the tank relate jury theory on to significantly question submitted to strict of whether the liability Following in tort. verdict in tire was these overinflated. circum-
Oil judge ing we conclude that the trial did passage from stances opinion court’s in refusing in his discretion admit not abuse Keener: results into evidence. test urges Dayton that Harold Keener must convicted of “contributory negligence
JURY INSTRUCTION
as a matter of law” because he lifted the
pump out
Appellant
sump
also asserts error in the
while standing
deep
water,
jury
instruction to the
relative
ankle
court’s
with no
trial
rubber
boots,
gloves
or rubber
challenged
of risk.
in
assumption
with the
given
pump plugged
as follows:
into an
struction
electric outlet.
*
* *
argues
Dayton
that this “was a
you
voluntary
that if
you
I instruct
be-
exposure to a
danger.”
evidence that the
In a
from the
manner
lieve
sense,
argument
is of some persua-
used
plaintiff
in which
bot-
However,
sion.
it misses the
dangerous,
plaintiff
in fact
mark
tle was
in this
involving
case
strict
dangerous,
liability
such use was
and that
knew
tort.
* * *
There is no evidence
voluntarily
unreasonably exposed
Ha-
*4
rold Keener had
danger,
knowledge
and thereby
himself to such
that
the
was not
injury,
your
pump
equipped
then
caused his
verdict must
with a ground
wire or an
(Emphasis sup-
protector.
for the defendant.
overload
Therefore,
be
there is no evidence
plied.)
justifying a finding
that Harold Keener became chargeable
Appellant contends that this instruction is
knowledge
with
of the “dangerous poten-
contributory negligence
one of
actually
tialities” of the pump by reason of such
risk,
assumption of
not
therefore is not
* * *
defects.
agree
that Harold
to the defendant under Missouri
available
voluntarily exposed
Keener
himself to a
law.
dangerous situation if he knew
pump
the
products liability cases Missouri
has
However,
was defective.
there is no evi-
the rule of strict
adopted
liability set out in
dence to show that he knew the pump
(Second)
Restatement
of Torts
402A
§
was defective.
In these circumstances,
(1965). Keener v. Dayton Electric Manu
plaintiff is not barred from recovery un-
Co.,
facturing
362,
(Mo.
445
364
S.W.2d
theory
der a
of “contributory fault.” Id.
1969). The rule announced in the Keener
(emphasis
365
in original;
at
citation
“contributory
case is that
negligence” is not
omitted.)
However,
a defense to strict liability.
the
“defense which consists of voluntarily and
passage,
argues
From this
that his
unreasonably encountering
danger
a known
use of
nitrogen to inflate the
**
* will,
general,
relieve the de
aircraft tire is comparable to Keener’s han-
365;
fendant of
liability.”
strict
Id. at
dling
see
pump
an electric
standing
while
ankle
(Second)
402A,
Restatement
of Torts
deep in water.
Each relates to the manner
(1965).
n
Comment
at 356
used;
court in
product
in which the
was
each was
Keener chose to refer to this defense as one dangerous under the circumstances. Since
“contributory
of
fault.” However denomi neither Keener nor Collins was aware of
nated, it is clear that the defendant
product,
is not
in the
any defect
even knowledge
plaintiff
if the
voluntarily
liable
using
encounters
they
product
that
were
the
in a dan-
thereby produces
a known hazard and
gerous
not,
his
manner
argument
should
so the
injury.
own
goes, exonerate the seller.
Collinsinsists that the defense of contrib-
A fundamental distinction exists between
utory
applicable
fault is
only
plaintiff
if the
facts of Keener
the
and the instant case.
knowledge of the
has
defective condition of
passage quoted
above makes clear that
product, and does not apply
the
where the
the court was satisfied
“dangerous
that the
danger
only
consists
of the manner potentialities”
sump
of the
pump stemmed
product
in which the
is used.
argu-
This
from the fact that it
with
apparently
ment is
derived from the follow-
ground
wire or an
protector.
overload
unaware,
flow high
nitrogen”
of
the
fact,
which Keener was
before
of
This
Keener’s
explosive
product
the
“defective.”
reached
levels. Such
rendered
“dangerous,”
is not
pump, apparently
negligence
the
a bar to
Some
recovery.
use of
by the ab-
unreasonably so
required.
is
thing
rendered
more
See Williams v.
was
injury would
wire. The
ground
Manufacturing
of a
Company,
Brown
45 Ill.2d
sence
been so
pump
had the
418,
resulted
(1970); Note,
tarily unreasonably exposed himself to danger, doing but also so “thereby injury.” caused his For the to render its verdict
jury for defendant on charge, required it was find that a America, STATES UNITED necessary plaintiffs’ right element of the Plaintiff-Appellee, recover, proof alleged defect injury, There- caused made. fore, giving we conclude that the chal- CHASES, Benjamin Alexander instruction was lenged not error. Defendant-Appellant. judgment is affirmed. No. 76-2902. Court of Appeals, States United HEANEY, dissenting. Circuit Judge, Ninth Circuit. respectfully my dissent. judgment, I June 1977. complained instruction should not given. facts, been Under the 10, 1977. As Amended Aug. most contributorily negligent was at in his Rehearing and Rehearing En Banc simply use of bottle. He in- 7, 1977. Denied Nov. higher pressure the tire to a than he flated have. He did so under the mistaken should stop a “T valve
impression that would