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FEBRUARY 15, 1984




Robert T. May filed suit in the Circuit Court of Adams County, Honorable Edwin E. Benoist, presiding, against Diamond International Corporation (Diamond) and Case Power & Equipment Company (Case) for personal injuries sustained by him. The lower court entered a directed verdict in favor of Case and, upon a jury verdict for May, *fn1 entered judgment for him against Diamond in the sum of $120,000. Diamond has appealed from the judgment against it and May has cross-appealed from the judgment in favor of Case.

Diamond has assigned eleven errors in the trial below. We address only the assignment that the court erred in overruling the request of the appellant, Diamond, for a peremptory instruction and reverse and render judgment here in favor of Diamond. We also affirm the judgment in favor of Case on cross-appeal.

 The appellee's case is founded principally upon the testimony of Robert T. May given in a discovery deposition prior to his death. May was a heavy equipment operator, fifty-nine years of age, who was employed by the J. W. Christian

 Construction Company. His duties with that company were operating bulldozers, motor graders and backhoes. He was a skilled operator with approximately thirty (30) years' experience with heavy machinery. About 10:30 p.m. on May 22, 1975, May received a telephone call at his home from J. W. Christian, who told him to come out to the plant, load up a Case backhoe, take it to Diamond and stay there until the job for which he was needed was completed, regardless of how long it required. He went to the Christian yard, loaded a Case backhoe on the trailer and took it to the Diamond plant, arriving there about 11 or 11:30 p.m. May said that J. W. Christian had instructed him to take the machine to Diamond and to do anything that the Diamond personnel or supervisor told him to do.

 Diamond was engaged in the manufacture of egg cartons and owned a huge warehouse wherein bales of paper had been stored to be used in that manufacturing process. A fire had started in the paper bales and was smoldering. May's work consisted of using the arm of the backhoe to pull down paper bales that were stacked on top of each other. They were then removed from the building by other workmen. Some employees had hoses in the warehouse and water was sprayed on the smoldering bales in order to control the fire. Other companies had sent men to Diamond for the purpose of helping in the operation, and Diamond's own employees were on the scene. As the paper bales were pulled down, flames would leap six to seven feet upward as oxygen got to the fire. An emergency situation existed and there was a certain amount of danger involved.

 May said that J. W. Christian Construction Co. had been hired by Diamond to come in and remove some of the burning bales and that they hired his machine. When May unloaded the machine, he said that one of the supervisors asked him to start pushing burning bales in one pile and bales that weren't burning into another pile. He used the front-end loader of the backhoe to do that.

 At the outset on Thursday, May 22, 1975, May was using the front-end loader rather than the backhoe. He continued that work until approximately 7:30 Friday morning, May 23, when another operator for J. W. Christian Construction Co. relieved him and he went home for rest. He returned to the job at approximately 2 p.m. Friday afternoon, and the relief operator was pulling down bales with the backhoe, using the back boom and claw on it. He did not indicate that he was having trouble with the machine. May began to have trouble with the backhoe in that the lever which controlled the bucket and arm failed to work properly. However, he continued to operate it until 4:30 or 5 p.m. on Friday, May 23, then shut it down because he felt that it was not safe to the men working around it, although he didn't

 consider it unsafe for himself.

 May telephoned Christian about the trouble and a mechanic from Case was sent to the Diamond premises for the purpose of repairing the backhoe. May told the mechanic that the problem was in the cylinder which controlled the boom up and down, and he helped the mechanic move and replace bolts on the covers of the hydraulic system. The mechanic removed the lever, took out the cylinder, washed it, inspected it and said it needed a new cylinder. The new part would have to be ordered and it would not arrive until two days later.

 The mechanic worked on the machine until 6:30 or 7 p.m., and completed all the repairs he could. May put the machine back into operation. About 8 p.m., he began having the same trouble as earlier, but continued to operate the machine by hitting the lever with his hand and kicking it with his boot. He did not call J. W. Christian or anyone else about the condition of the machine. About 2 a.m., May shut down the machine and intended to go home, having worked twelve hours since 2 p.m. He said the supervisor asked him why he stopped the machine, and May told him that it was dangerous for the personnel around it, that he felt he could operate it safely for himself; and that he knew it was in an unsafe condition. The supervisor explained that if the bales were not taken down, the whole plant would burn, and May said:

 He asked me if I would come up and get an opening in the back of the building so they could get their forklifts and loaders in there to start bringing bales out. He asked me to remove a few more feet. He didn't threaten me. He asked if I could just please come up in there and get them a hole in there where they could get the machines out. So I told him I would. I told him I would go in there and get as much as I could out if he would keep his personnel away from the machine. I wasn't sure I could operate it safely with that many men around me manning the fire hose. With my experience with all types of equipment and in all conditions, I felt I could still operate it safely for myself. But when a supervisor is asking you if you could possibly keep the machine working without endangering your own life, you try to do it. I undertook this hazard knowing the hazard. I believe any other man would have done the same. I got back on and cranked it up knowing I was going to have the same problems with the boom. I wouldn't have done it unless I felt I could do it safely.

 May continued to operate the machine in its defective

 condition for approximately one to one and one-half hours until approximately 4 a.m. He was standing in the cab and attempted to kick the lever, but failed to get it out of neutral. The boom continued to operate, he tried to kick it again, the boom was going down and to his right, and struck the concrete floor. The ...

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