{ "id": 8522018, "name": "WILSON HAYMORE and SANDRA LEE HAYMORE, Plaintiffs v. THE THEW SHOVEL COMPANY; LORRAIN CRANE, and THE KOEHRING COMPANY, Defendants and Third Party Plaintiffs v. ALLIED SIGNAL, INC., Third Party Defendant", "name_abbreviation": "Haymore v. Thew Shovel Co.", "decision_date": "1994-08-16", "docket_number": "No. 9321SC190", "first_page": "40", "last_page": "52", "citations": [ { "type": "official", "cite": "116 N.C. App. 40" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "13 ALR4th 476", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "51 ALR3d 1344", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "3 ALR3d 1016", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "182 S.E.2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "877" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 275", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549077 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/12/0275-01" ] }, { "cite": "326 S.E.2d 96", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "73 N.C. App. 232", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523072 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/73/0232-01" ] }, { "cite": "58 L. Ed. 2d 124", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1978, "opinion_index": 0 }, { "cite": "439 U.S. 830", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11354337, 11354755, 11354505, 11355114, 11354701, 11354576, 11355217, 11354834, 11355026, 11354643, 11354933, 11354429 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/us/439/0830-01", "/us/439/0830-07", "/us/439/0830-03", "/us/439/0830-11", "/us/439/0830-06", "/us/439/0830-04", "/us/439/0830-12", "/us/439/0830-08", "/us/439/0830-10", "/us/439/0830-05", "/us/439/0830-09", "/us/439/0830-02" ] }, { "cite": "241 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "692" } ], "opinion_index": 0 }, { "cite": "294 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573223 ], "year": 1978, "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0382-01" ] }, { "cite": "272 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 479", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567995 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0479-01" ] }, { "cite": "265 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 608", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552433 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0608-01" ] }, { "cite": "378 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "246" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 453", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528090 ], "year": 1989, "pin_cites": [ { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0453-01" ] }, { "cite": "364 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "expert's opinion that defendant's lack of security was \"gross negligence\" an improper legal conclusion" } ], "opinion_index": 0 }, { "cite": "321 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566545 ], "year": 1987, "pin_cites": [ { "parenthetical": "expert's opinion that defendant's lack of security was \"gross negligence\" an improper legal conclusion" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0494-01" ] }, { "cite": "355 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "expert's opinion that defendant's lack of security was \"gross negligence\" an improper legal conclusion" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 401", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169964 ], "year": 1987, "pin_cites": [ { "parenthetical": "expert's opinion that defendant's lack of security was \"gross negligence\" an improper legal conclusion" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0401-01" ] }, { "cite": "340 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "under new rules experts still precluded from stating that a legal standard has been met, i.e., that injuries were the proximate cause of death" } ], "opinion_index": 0 }, { "cite": "315 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715465 ], "year": 1986, "pin_cites": [ { "parenthetical": "under new rules experts still precluded from stating that a legal standard has been met, i.e., that injuries were the proximate cause of death" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0599-01" ] }, { "cite": "367 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "903" }, { "page": "904" } ], "opinion_index": 0 }, { "cite": "322 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517737 ], "year": 1988, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0152-01" ] }, { "cite": "404 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1991, "pin_cites": [ { "page": "362" }, { "page": "362" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519458 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/103/0052-01" ] }, { "cite": "300 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565620 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0695-01" ] }, { "cite": "293 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "637" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 283", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524696 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/58/0283-01" ] }, { "cite": "407 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "352" }, { "page": "235" } ], "opinion_index": 0 }, { "cite": "329 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553288 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0330-01" ] }, { "cite": "401 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "803" }, { "page": "805" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 222", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523084 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0222-01" ] } ], "analysis": { "cardinality": 1082, "char_count": 27813, "ocr_confidence": 0.743, "pagerank": { "raw": 8.453760542239958e-08, "percentile": 0.4849562657900132 }, "sha256": "e523528dd69de0db48306170f65bc799151160a95dac13b7e673295534a6cde6", "simhash": "1:e5a0c47a7707a1f7", "word_count": 4580 }, "last_updated": "2023-07-14T22:38:55.005039+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and JOHN concur." ], "parties": [ "WILSON HAYMORE and SANDRA LEE HAYMORE, Plaintiffs v. THE THEW SHOVEL COMPANY, LORRAIN CRANE, and THE KOEHRING COMPANY, Defendants and Third Party Plaintiffs v. ALLIED SIGNAL, INC., Third Party Defendant" ], "opinions": [ { "text": "ORR, Judge.\nI.\nPlaintiff contends that the trial court erred by not ruling as a matter of law that Koehring was the apparent manufacturer of the subject boom brake cylinder. We believe that the trial judge was correct in allowing the jury to decide this question.\nThis Court considered a similar scenario in Warzynski v. Empire Comfort Systems, Inc., 102 N.C. App. 222, 401 S.E.2d 801 (1991). Warzynski involved a Spanish manufacturer of gas heaters, Safel-Inelsa Orbaiceta, S.A. (Safel), which sold in the United States through Empire Comfort Systems (Empire). Plaintiff contended that their Empire gas heater caused their house to burn down. The trial court granted summary judgment in favor of Empire Comfort Systems on the basis of the \u201csealed container defense.\u201d N.C. Gen. Stat. \u00a7 99B-2(a). This Court held that the trial court erred in granting summary judgment for Empire because there was a genuine issue of material fact as to the apparent manufacturer of the gas heater. 102 N.C. App. at 225, 401 S.E.2d at 803.\nIn so holding, this Court adopted \u00a7 400 of the Restatement (Second) of Torts, which says:\nOne who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.\nRestatement (Second) of Torts \u00a7 400 (1965). In the same opinion this Court quoted comment d of \u00a7 400 of the Restatement (Second) of Torts, which acts to limit the scope of \u00a7 400. Comment d, in relevant part, says:\n[WJhere it is clear that the actor\u2019s only connection with the chattel is that of a distributor of it (for example as a wholesale or retail seller), he does not put it out as his own product and the rule stated in this section is inapplicable. Thus, one puts out a chattel as his own product when he puts it out under his name or affixes to it his trade name or trademark. . . . However, where the real manufacturer or packer is clearly and accurately identified on the label or other markings on the goods, and it is also clearly stated that another who is also named has nothing to do with the goods except to distribute or sell them, the latter does not put out such goods as his own.\nRestatement (Second) of Torts \u00a7 400 comment d (1965) (emphasis added).\nThis Court considered the lack of any \u201cmade in Spain\u201d references in Empire\u2019s advertising of the heaters. In fact, the record stated that one of Empire\u2019s advertisements stated that the heater was \u201cAmerica\u2019s best made and best-selling unvented gas wall furnace.\u201d Nowhere on the package was there an indication that Safel was the manufacturer. The only indication that the heater was not made by Empire was a decal on the carton and heater saying the heater was made in Spain. On the basis of these facts found in the record, this Court concluded that the trial court should have submitted to the jury the question of whether Empire was the apparent manufacturer of the gas heaters. Warzynski at 228, 401 S.E.2d at 805.\nThe instant case is similar to Warzynski in that there is a clear issue of fact which a jury should decide. While Koehring sold the boom brake cylinders, the \u201cchamber\u201d apparatus of the brake was clearly identified by the Bendix/Westinghouse trademark. In Warzynski we ruled that the trial court erred in not submitting this issue to the jury when the status of a company as \u201capparent manufacturer\u201d was in dispute. In the instant case a similar question existed, and so we hold that the issue was properly submitted to the jury by the trial court.\nPlaintiff argues that Koehring had a non-delegable duty which prevents assertion of defenses available in negligence cases. Relying on Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), in which the Court stated that a person \u201cwho employs an independent contractor to perform an inherently dangerous activity may not delegate to the independent contractor' the duty to provide for the safety of others.\u201d Id. at 352, 407 S.E.2d at 235. In making this argument, plaintiff contends that cranes are \u201cinherently dangerous.\u201d In McCollum v. Grove Mfg. Co., 58 N.C. App. 283, 293 S.E.2d 632 (1982), aff\u2019d, 307 N.C. 695, 300 S.E.2d 374 (1983), we considered an alleged design defect in a crane which plaintiff claimed caused an accident at a worksite. Plaintiff claimed the crane was inherently dangerous. This Court found from the record that there was \u201cno evidence that the crane was an inherently dangerous instrumentality.\u201d Id. at 291, 293 S.E.2d at 637. Based on McCollum\u2019s reasoning that cranes are not inherently dangerous, plaintiffs reliance on cases involving non-delegable duty is misplaced.\nII.\nPlaintiffs second and third assignments of error concern the trial court\u2019s refusal to allow the OSHA report and testimony from its author, Mr. Saunders, to be introduced in their entirety. The trial court allowed Mr. Saunders to introduce the report and discuss its findings, but it would not allow him to state the report\u2019s conclusion that the accident was caused by brake failure. In his report, Mr. Saunders had stated, \u201c[i]n summary, a crane used to lift conveyor belting had a brake malfunction causing the load to drop.\u201d Plaintiff first contends that the conclusions of the report concerning the cause of the accident should have been admitted into evidence. Plaintiff also contends that the conclusions of Mr. Saunders on what he considered to be the cause of the accident should have been allowed.\nThe trial court properly introduced the OSHA report pursuant to N.C.G.S. \u00a7 8C-1, Rule 803(8), which reads in pertinent part:\nThe following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . .\n(8) Public records and reports. \u2014 Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or, (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (c) in civil actions and proceedings and against the State in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.\nN.C.G.S. \u00a7 8C-1, Rule 803(8).\nThis Court considered a similar fact pattern involving Rule 803(8) in Mickens v. Robinson, 103 N.C. App. 52, 404 S.E.2d 359 (1991). In Mickens, a police officer investigated an automobile accident scene and took a statement which tended to establish the cause of the accident. The court allowed the officer to read the following quote taken from his report of what the witness said:\nVehicle # 1 traveling east on West Sixth Street failed to stop for a red light and was involved in an accident with vehicle # 2 traveling north on Main Street. Account given by disinterested witness.\nId. at 56, 404 S.E.2d at 362. This Court said that the trial court erred by allowing the officer to read this statement in response to being asked if he had any \u201cconclusions as to the cause of the accident.\u201d Id. at 57, 404 S.E.2d at 362. The Court reasoned that the question asked the officer to express an opinion as to fault in the accident. Id. This Court further held, however, that the officer saved the testimony \u201cby limiting his response to repeating from his report what he had been told about what happened. The sum total of Officer. Turner\u2019s testimony was to disavow any assessment or attribution of fault.\u201d Id. Accordingly, the trial court\u2019s error was held to be non-prejudicial. Id.\nApplying Mickens to the instant case, the trial court was correct in not allowing Mr. Saunders to offer his report\u2019s conclusions on the cause of the accident. Much like the policeman whose conclusions were based on an eyewitness, Mr. Saunders\u2019 conclusions were based only on the beliefs of the crane operator, Mr. Bell. The OSHA report\u2019s statement that it was Mr. Bell\u2019s opinion that brake failure caused the accident was admitted into evidence. However, Mr. Saunders\u2019 own \u201cconclusions as to the cause of the accident\u201d could not be given to the jury because the trial court, within its discretion, determined that he was not an expert on the subject of crane brake mechanisms. Thus, the trial court followed Mickens in not allowing Mr. Saunders to share his conclusions as to the cause of the accident.\nPlaintiff\u2019s next assignment of error is that Mr. Saunders was improperly prohibited from offering his opinion on the cause of the accident as an expert witness. Conclusory statements made by experts are admissible if the experts are qualified to make them. State v. Weeks, 322 N.C. 152, 164, 367 S.E.2d 895, 903 (1988). In Weeks, a homicide case in which defendant sought to use an insanity defense, the trial court refused to admit into evidence conclusory statements by psychiatrists that defendant acted under a violent passion and that defendant could not conform his behavior to the requirements of the law as a result of his mental disorder. The Court held that \u201c[s]uch testimony embraces precise legal terms, definitions of which are not readily apparent to medical experts.\u201d Id. at 166, 367 S.E.2d at 904. Accordingly, the Court upheld the trial court\u2019s decision to not allow legal conclusions by the experts. The Supreme Court and this Court have made similar decisions in other cases. See State v. Ledford, 315 N.C. 599, 340 S.E.2d 309 (1986) (under new rules experts still precluded from stating that a legal standard has been met, i.e., that injuries were the proximate cause of death), Murrow v. Daniels, 85 N.C. App. 401, 355 S.E.2d 204, rev\u2019d and remanded on other grounds, 321 N.C. 494, 364 S.E.2d 392 (1987) (expert\u2019s opinion that defendant\u2019s lack of security was \u201cgross negligence\u201d an improper legal conclusion).\nWe believe that the trial court properly did not allow Mr. Saunders to testify on his belief of the cause of the accident because this was a legal conclusion which Mr. Saunders was not qualified to make. We also note that, though he had investigated crane accidents before, Mr. Saunders did not have any specialized knowledge of the boom brake cylinder operation which he attributed as the cause of the accident. In fact, he admitted in court that this was his first case dealing with a crane boom brake malfunction, and that his conclusions on the defectiveness of the brake system were based solely on the conclusions of other people. Out of the presence of the jury, the trial court stated:\nThis Court will consider a determination of expertise if you show training and experience \u00f3f this witness relative to matters in question such as the operation of these brake cylinders and his opportunity to inspect it and otherwise determine what was going wrong with it. So far I don\u2019t think there\u2019s been enough showing of any expertise to deduce what happened to this particular cylinder, whether it\u2019s contained in the report or not.\nPlaintiff made no attempt to further establish Mr. Saunders\u2019 expertise on the subject. On the basis of the above cited authority and facts, we believe the trial court acted properly in not allowing Mr. Saunders to testify as an expert on his conclusion as to the cause of the accident.\nIII.\nPlaintiff also assigns error to the trial court\u2019s refusal to introduce admissions made by the defendant in the pleadings. The admissions concerned the ownership of the crane and the chain of suppliers of the boom brake cylinder. Plaintiff sought to introduce these admissions during the testimony of Mr. Bernard McCaul, a mechanic for C.P. Buckner, Inc. In response to the request, the trial court stated:\nIf you want to read these things that are judicially admitted by the defendants, I think there is an appropriate time and place for that, but not during the testimony of a witness that doesn\u2019t have specific knowledge of those things that are admitted. . . .\nPlaintiff cites Brown v. Lyons, 93 N.C. App. 453, 457, 378 S.E.2d 243, 246 (1989). Lyons states that \u201c[a] party is bound by his pleadings and may not take a contradictory position.\u201d Id. However, in the instant case, plaintiff does not assert that the defendant was improperly permitted to introduce testimony contrary to its pleadings. Plaintiff only asserts that introduction of the pleadings was not allowed at a certain time. We believe that the trial court was acting within its authority by delaying the introduction of the admissions. In addition, we note that there was no other attempt later in the trial by the plaintiff to offer admissions made by defendants in their pleadings and we therefore find no merit in this assignment of error.\nIV.\nPlaintiffs next assignment of error concerns the trial court\u2019s rejection of plaintiff\u2019s proposed jury instruction. Proposed special jury instructions must follow the guidelines set forth in N.C.G.S. \u00a7 1-181. The trial court must give the instructions requested, at least in substance, if they are proper and supported by evidence. State v. Lynch, 46 N.C. App. 608, 265 S.E.2d 491, rev\u2019d on other grounds, 301 N.C. 479, 272 S.E.2d 349 (1980). However, the trial court may exercise discretion to refuse instructions based on erroneous statements of the law. State v. Agnew, 294 N.C. 382, 395, 241 S.E.2d 684, 692, cert. denied, 439 U.S. 830, 58 L. Ed. 2d 124 (1978).\nPlaintiff submitted a jury instruction stipulating that the defendant admitted that the presence of foreign substances in the canister of a boom brake cylinder would be negligence. Plaintiff based this instruction on the following testimony of Mr. Norman Hargreaves, an engineer for defendant:\nQ: Well, do you have an opinion satisfactory to yourself and to a reasonable certainty in the field of engineering that you\u2019ve told us about whether the failure or that \u2014 or whether receiving this boom brake cylinder in such a condition would be a violation of acceptable engineering standards of design, manufacture \u2014 and manufacture?\nMr. Carruthers: Objection.\nThe Court: Overruled.\nA: I think as I mentioned I wouldn\u2019t talk about design, but certainly it would not be within my expectations of good manufacturing practices.\nOn the basis of this testimony, plaintiff asked the trial court for the following jury instruction:\nThe Defendants, The Thew Shovel Company, Lorrain Crane, and the Koehring Company, admit and do not contest that if the facts of this case are that the subject rotochamber was delivered to C.P. Buckner containing contaminants within the rotochamber that the rotochamber was defective and that the rotochamber would contain a manufacturing defect. Therefore, if you find by the greater weight and to your satisfaction that the subject rotochamber as delivered to C.P. Buckner did in fact contain contaminants of such a size and character as to obstruct the air exhaust and that these contaminants did in fact obstruct the rotochamber and prevent the rotochamber from functioning properly, and that therefore these obstructions caused the boom of the crane to fall, then you should answer the first issue \u201cYes\u201d in favor of the Plaintiffs.\nPlaintiff cites Shuffler v. Blue Ridge Radiology Assoc., P.A., 73 N.C. App. 232, 326 S.E.2d 96 (1985). In Shuffler, plaintiff claimed defendant was negligent in providing medical care. On defendant\u2019s motion for directed verdict, the trial court held that defendant\u2019s uncontra-dicted testimony on the standard of practice among radiologists was sufficient to establish the standard of care. In the instant case, plaintiff contends that the testimony of defendants\u2019 engineer on the standard of care for boom brake cylinders should establish the relevant standard. If this were permitted, plaintiff contends, the jury only has to answer whether there were contaminants in the air canister.\nWe believe the trial court was acting within its discretion established in Agnew when it denied the proposed jury instruction. We first distinguish Shuffler from this case on the basis of the credibility of a standard of care established. In Shuffler, the defendant, a physician, described the standard of care which he owed his own patients. Thus, the only remaining question for the jury was whether this standard was breached. In the instant case, plaintiff contends that the standard of care is established by the testimony of one witness\u2019 remark that \u201cit would not be within my expectations of good manufacturing practices\u201d for an air canister to have loose particles in it. We do not believe that the determination of the standard of care is established based upon this response to counsel\u2019s question.\nWe further note that even if we considered the testimony of Mr. Hargreaves to establish the standard of care, the jury instruction would still not be proper in this case. There was no prior issue for the jury to consider in Shuffler before deciding whether the defendant breached the established standard of care, and therefore the tendered instruction was correct. In plaintiff\u2019s proposed jury instruction in the instant case, the issue of whether defendants were the apparent manufacturer is an issue which must be decided prior to a determination of whether defendants were negligent. This prior issue was taken for granted by plaintiff\u2019s proposed jury instruction. By the proposed instruction, if contaminants are. found to be present, defendants are liable (without any determination of whether defendants were the apparent manufacturer). If the jury had concluded that defendants either were the apparent manufacturer or that defendants had a reasonable opportunity to inspect, then the jury could have proceeded to the question of whether there were contaminants in the chamber, and Shuffler would be applicable. However, since the jury answered in the negative on its first two instructions concerning whether defendants were the apparent manufacturer, there would be no reversible error even if we considered the standard of care to be established by Mr. Hargreaves\u2019 testimony.\nFor the above reasons, the trial court was acting within its discretion under Agnew when it refused to allow plaintiffs proposed jury instructions.\nV.\nPlaintiffs next assignment of error is that the trial court erred in making comments to the jury after their verdict was reached. Following the jury\u2019s presentation of their verdict, the court made the following comments:\nSince you\u2019re not going to be involved in any other matters, I say to you I agree particularly] with your verdict with respect to the third issue on negligence and the Court felt like it was very close to being a matter of law, there was insufficient evidence to take the showing of negligence as to the defendant and third-party defendants beyond the realm of conjecture and speculation and surmise.\nThe relevant rule on comments by judges to the jury is Rule 51(c), which states that \u201c[t]he judge shall make no comment on any verdict in open court in the presence or hearing of any member of the jury panel.\u201d N.C.G.S. \u00a7 1A-1, Rule 51(c). This Court discussed the effect of prejudicial statements made by judges before the jury in Worrell v. Hennis Credit Union, 12 N.C. App. 275, 182 S.E.2d 874 (1971). In Worrell we stated:\nThe criterion for determining whether the trial judge deprived a litigant of his right to a fair trial by improper comments or remarks in the hearing of the jury is the probable effect on the jury.\nId. at 278-79, 182 S.E.2d at 877. Applying Worrell to the instant case, we find that there is no \u201ceffect on the jury\u201d from the judge\u2019s remarks in the instant case. The remarks were made after the verdict was returned. Plaintiff does not contend that the judge was unfair or impartial during the trial. While the remarks made by the court were perhaps not appropriate under a strict reading of Rule 51, they do not constitute reversible error.\nPlaintiff\u2019s final assignment of error is that the trial court erred in granting its own motion for a directed verdict after the jury had returned its verdict. The jury improperly proceeded to the issue of defendants\u2019 negligence after deciding that the defendants were not the apparent manufacturer. The judge\u2019s sua sponte motion for directed verdict reaffirmed the unnecessary verdict of the jury on the issue. It is not necessary for us to decide this issue because the trial court was not required to address the defendants\u2019 negligence at all after the jury concluded that the defendants were not the apparent manufacturer.\nFor the reasons stated above, we affirm the judgment of the trial court. Accordingly, we need not address defendants\u2019 cross-assignments of error.\nAffirmed.\nJudges LEWIS and JOHN concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "Blanchard, Twiggs, Abrams & Strickland, P.A., by Douglas B. Abrams, for plaintiff-appellants.", "Wishart, Norris, Henninger & Pittman, P.A., by June K Allison and Robert J. Wishart, for defendant-appellees and third party plaintiffs." ], "corrections": "", "head_matter": "WILSON HAYMORE and SANDRA LEE HAYMORE, Plaintiffs v. THE THEW SHOVEL COMPANY, LORRAIN CRANE, and THE KOEHRING COMPANY, Defendants and Third Party Plaintiffs v. ALLIED SIGNAL, INC., Third Party Defendant\nNo. 9321SC190\n(Filed 16 August 1994)\n1. Products Liability \u00a7 3 (NCI4th)\u2014 crane brake failure \u2014 who manufactured boom brake cylinder \u2014 jury question\nIn an action to recover for injuries sustained when the brake on a crane malfunctioned, the trial court properly allowed the jury to decide whether defendant Koehring Co. was the apparent manufacturer of the subject boom brake cylinder where defendant sold the boom brake cylinder to the crane owner; the \u201cchamber\u201d apparatus of the brake was clearly identified by the trademark of the third-party defendant; and there was therefore a clear issue of fact which a jury should decide.\nAm Jur 2d, Products Liability \u00a7\u00a7 164-177.\nProducts liability: Manufacturer\u2019s responsibility for defective component supplied by another and incorporated in product. 3 ALR3d 1016.\nProducts liability: Necessity and sufficiency of identification of defendant as manufacturer or seller of product alleged to have caused injury. 51 ALR3d 1344.\n2. Products Liability \u00a7 29 (NCI4th)\u2014 crane not inherently dangerous \u2014 cases involving nondelegable duty inapplicable\nSince cranes are not inherently dangerous, plaintiffs reliance on cases involving nondelegable duty was misplaced.\nAm Jur 2d, Products Liability \u00a7\u00a7 740, 741.\nProducts liability: Cranes and other lifting apparatuses. 13 ALR4th 476.\n3. Evidence and Witnesses \u00a7 582 (NCI4th)\u2014 OSHA report\u2014 evidence as to cause of accident properly excluded \u2014 report based on crane operator\u2019s belief \u2014 author of report not expert on crane brake failure\nIn an action to recover for injuries sustained when the brake on a crane malfunctioned, the trial court did not err in refusing to allow an OSHA report and testimony from its author to be introduced in their entirety, since the author\u2019s conclusions as to the cause of the accident were based only on the beliefs of the crane operator, and the trial court determined that the author was not an expert on the subject of crane brake mechanisms. N.C.G.S. \u00a7 8C-1, Rule 803(8).\nAm Jur 2d, Expert and Opinion Evidence \u00a7 70.\n4. Evidence and Witnesses \u00a7 2152 (NCI4th)\u2014 cause of accident \u2014 legal conclusion \u2014 nonexpert witness not allowed to give\nThe trial court properly prohibited an OSHA safety inspector from offering his opinion on the cause of a crane accident as an expert witness because this was a legal conclusion which the witness was not qualified to make, and the witness had no specialized knowledge of the boom brake cylinder operation which he attributed as the cause of the accident.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 1, 136 et seq.\n5. Evidence and Witnesses \u00a7 1099 (NCI4th)\u2014 admissions in pleadings not allowed by trial court \u2014 no error\nThe trial court did not err in refusing to permit plaintiff to introduce admissions made by defendant in the pleadings during the testimony of a witness who knew nothing about the matters admitted.\nAm Jur 2d, Evidence \u00a7\u00a7 774 et seq.; Trial \u00a7\u00a7 321 et seq.\n6. Products Liability \u00a7 29 (NCI4th)\u2014 plaintiff\u2019s proposed jury instruction \u2014 jury question taken for granted \u2014 standard of care not established \u2014 instruction not given \u2014 no error\nIn an action to recover for injuries sustained when the brake on a crane malfunctioned, the trial court did not err in refusing to give plaintiffs proposed instruction that defendants admitted that the presence of foreign substances in the canister of a boom brake cylinder would constitute negligence by defendants where, contrary to plaintiffs contention, the standard of care was not established by the testimony of a defense witness that it would not be within his expectations of good manufacturing practices for such a canister to have loose particles in it, and the proposed instruction assumed that defendants were the apparent manufacturer of the cylinder when this was a question for the jury.\nAm Jur 2d, Trial \u00a7 1093.\n7. Trial \u00a7 464 (NCI4th)\u2014 trial court\u2019s remarks to jury after verdict \u2014 no effect on jury \u2014 no reversible error\nThough the trial court\u2019s remarks to the jury after its verdict was reached were perhaps inappropriate under N.C.G.S. \u00a7 1A-1, Rule 51(c), they did not constitute reversible error, since there was no \u201ceffect on the jury\u201d from the remarks.\nAm Jur 2d, Trial \u00a7\u00a7 276 et seq.\nAppeal by plaintiffs and cross appeal by defendant, the Koehring Company, from judgment filed 16 October 1992 by Judge Judson D. DeRamus, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 5 January 1994.\nPlaintiff was working as an employee of Famco, Inc. at the R.J. Reynolds\u2019 Bailey Power Plant in Winston-Salem on 22 October 1987. He was engaged in construction work approximately seven stories above the ground.\nA Koehring Crane supplied by C.P. Buckner, Inc. and operated by Mr. Edward Bell was located at the construction site. Mr. Bell was using the crane to lift a roll of conveyor material weighing 1,600 pounds. As the conveyor material was moved into place, it suddenly dropped and struck the plaintiff. The impact caused several injuries to plaintiff including a broken pelvis.\nAfter the accident, the North Carolina Department of Labor sent Mr. John Saunders, a safety inspector, to the site to conduct an OSHA investigation. The OSHA report concluded that the brake operation on the crane malfunctioned causing the sudden fall of the conveyor material. A mechanic from C.P. Buckner, Inc., Mr. Bernard McCaul, inspected the crane several days afterwards and found particles which appeared to be paint chips inside the air chamber of the boom brake cylinder. The crane has a \u201cspring on/air off\u2019 brake. A spring permanently keeps the brake locked until air is forced into the cylinder. The air compresses the spring, releasing the brake. Mr. McCaul stated his belief that these particles caused the boom brake cylinder to malfunction.\nPrior to the accident, C.P. Buckner, Inc. replaced the boom brake cylinder during an overhaul of the crane in August of 1987. The replacement boom brake cylinder was ordered from a distributor of Koehring Crane. Koehring Crane sent the cylinder directly to C.P. Buckner, Inc. The air chamber component of the boom brake cylinder was made by the Bendix Heavy Vehicle Division of Allied Signal, Inc. The chamber was marked with a Bendix/Westinghouse trademark.\nPlaintiff seeks damages from the Thew Shovel Company, Lorrain Crane, and the Koehring Company, for negligent manufacture. Defendant Thew Shovel was the original company, which was later purchased by Koehring. Because it was located in Lorrain, Ohio, the crane division of Koehring was called Lorrain Crane. The three defendants were represented by one counsel. Before trial, defendants made a motion for summary judgment, which the trial court denied. At trial, the jury returned a verdict for defendants.\nBlanchard, Twiggs, Abrams & Strickland, P.A., by Douglas B. Abrams, for plaintiff-appellants.\nWishart, Norris, Henninger & Pittman, P.A., by June K Allison and Robert J. Wishart, for defendant-appellees and third party plaintiffs." }, "file_name": "0040-01", "first_page_order": 70, "last_page_order": 82 }