Kinerslow v. Cmi Corp, Bid-Well Div.

217 F.3d 1021 (8th Cir. 2000)


P worked for FWI and fell from a bridge over a highway. P brought a personal action D. At the time, he fell, P was operating a bull float, walking backward and forward on a mini work bridge behind a D paving machine, smoothing out concrete. The word bridge had tapered end sections, but no written or painted warnings or guard rails to alert workers that they were coming to the end of the work bridge. P, walking backward, fell from the end of the work bridge to the ground 18' below. He was severely hurt. P sued D for strict liability and negligence. The problem was that the work bridge no longer had any markings or labels of who manufactured it. D and a company called Gomaco built similar products. P’s employer had purchased the bridge before 1977 and had paired it with D’s paving machine. P focused in on D and offered the following circumstantial evidence. Two FWI employees testified that once a concrete company purchased a work bridge and a paving machine, from whatever source, the two pieces of equipment are generally kept together as a set. P testified that when he worked with a D paving machine, he always used a work bridge identical to the one from which he fell. He also testified that when he worked for a different concrete company, he saw D paving machines used with work bridges with tapered end sections like the one from which he fell. The two pieces of equipment had been in FWI's inventory since at least 1977. The president of Allied Construction Company, D's primary competitor in the steelwork bridge market, testified during P's case in chief that Allied Construction was the exclusive distributor of Gomaco paving machines and work bridges in the St. Louis area. The president testified that he could find but one invoice recording a sale of a Gomaco work bridge to FWI; that sale occurred in 1980 and did not involve the sale of a paving machine. He also testified that the Gomaco work bridges he was familiar with - those manufactured and sold after 1984, the year he began working for Allied Construction - all had metal triangles inserted in their frames, unlike the work bridge from which P fell. The president could not say whether Gomaco work bridges manufactured and sold before 1984 had such triangles. He also did not know what types of work bridges FWI had in inventory on the day of the accident, whether FWI had purchased a Gomaco work bridge from a source other than Allied Construction, or whether Bid-Well had ever sold work bridges with tapered end sections. D's witness Daniel Napierala, a long-time Gomaco employee, testified that since 1968 when it began building work bridges, Gomaco alone had been making work bridges with tapered end sections. He also testified that beginning in 1984, Gomaco began to put metal triangles on the frame of its work bridges so that warning labels could be attached to the work bridge. D's only other witness, Jack Lease, has been a D employee since 1970. He was originally hired as a design draftsman and is now D's vice president and sales manager. He testified that D began manufacturing and selling work bridges in 1975, but had never manufactured or sold work bridges with tapered end sections. D moved for judgment as a matter of law under Rule 50(a). The judge concluded that the evidence was equal and that since P bore the burden of proof D was entitled to JNOV. P appealed.