The opinion of the court was delivered by: John E. Miller, District Judge.
On October 4, 5, and 6, 1955, this case was tried to the
Court without a jury, and at the conclusion of the trial the
Court took the case under advisement pending receipt of briefs
from the respective parties. The briefs have been received,
and the Court, after considering the pleadings, the evidence
introduced at the trial, and the briefs of the parties, now
makes and files herein its Findings of Fact and Conclusions of
Law, separately stated.
The plaintiff, Dale Hopson, is a citizen of Arkansas and
resides in Ouachita County in said State. He is the
administrator of the estate of Eva B. Hopson, deceased. The
defendant is the United States of America, and this is a tort
action brought by the plaintiff against the defendant to
recover damages individually and on behalf of his deceased
wife's estate, because of the alleged negligence of the
Prior to 1951, the defendant had been operating a Naval
Ammunition Depot at Shumaker, Ouachita County, Arkansas. The
depot comprises approximately 68,890 acres, and there are
numerous buildings, machines, etc., located on the property.
In 1951, the defendant, by contracts NOrd(f)-1559 and
NOrd-11771, turned over to the National Fireworks Ordnance
Corporation, hereinafter referred to as NFOC, the facilities
owned by the defendant, and thereafter the depot was operated
by NFOC under a cost-plus arrangement. The defendant retained
ownership of the facilities, but NFOC was charged with the
responsibility of maintaining and operating the facilities.
The defendant, and more particularly the Navy Department,
had no authority over NFOC and its employees other than to
inspect the plant and facilities and to ascertain whether the
contracts were being complied with, or whether there were any
deviations from the requirements of said contracts.
When one of the departments of NFOC desired to have a new
machine or other item built, the department head would discuss
his department's needs with the engineering department, the
chief engineer being J. Fred Holder, and the Director of
Safety, Tom Marsh. If the initial idea met with their
approval, the engineering department would design the
particular machine, and the plans would then be routed through
channels for the approval of interested persons. When the
initiating department head and the engineering department had
approved the plans, said plans were then routed to the
Director of Safety for his approval. If he approved the plans,
they were then routed through the local Inspector of Ordnance
to the Bureau of Ordnance.
This general procedure was followed in connection with the
machine involved in the instant case, and all parties, both
NFOC personnel and Navy personnel, approved the plans.
As time went on the method of removing inhibitor strips
improved somewhat, and as of the first part of 1953 such work
was being done with the use of joiner machines. However, even
at that time the grains had to be fed by hand, and there was
still little protection for the workers.
In the early part of 1953 a need arose for two additional
joiner machines which would be used for de-inhibiting grains.
At that time the production department, the engineering
department, and the Director of Safety, all of whom were
employees of NFOC, worked together and planned the Delta
joiner machine involved herein. Every effort was made to make
the machines and the building in which they were to be
situated as safe as possible for all concerned. The particular
room or bay in which the two new machines were to be placed
had one wall (the one separating the room or bay from the hall
traversing the center of the building) of approximately three
feet or more in thickness, and the opposite wall was primarily
of glass blocks. On the side of the room having a wall three
feet thick, there was a large metal door which was air
actuated. There was also a door on the opposite side of the
bay leading to the outside of the building. The employees were
instructed that in the event of fire they were to proceed out
the door leading to the outside. The room was built in this
manner to minimize damage to the building and to employees in
other parts of the building in the event of a fire or an
explosion in this particular bay. In other words, in the event
of fire or explosion the wall of glass blocks, being
comparatively weak, would be destroyed but the remainder of
the building would be relatively unharmed. The bay was divided
into two sections by a metal wall, and one machine was to be
placed in each section. In the section where the particular
Delta joiner involved herein was placed there were eight
sprinkler heads which could be operated manually or
automatically. On the outside of the building lightning rods
were spaced every 50 feet. Employees were required to wear
safety shoes while working in the bay, and they were not
allowed to have matches or cigarette lighters on their
Employees were instructed not to allow more than two
operators and one transit (person hauling grain) in the bay at
one time, and not to have more than 10 grains in the bay at
any one time. The dollies used to carry the grain were made of
aluminum. The floors were of concrete with a sparkproof
substance thereon. The motor on the particular machine herein
involved was explosive proof; it was grounded to the secondary
grounding system; a metal barricade was constructed around the
machine; an entrance door and a safety glass door were
constructed in the metal barricade.
The electrical system was installed in a manner that would
prevent or stop the operation of the machine when either the
safety glass door or the entrance door was open.
In other words, the three things that were to be avoided
were shock, spark, and friction, and all possible safeguards
were being made to avoid these three hazards.
A machine was operated by one operator and one helper.
Generally speaking, the operation was handled as follows. The
operator would open the safety glass feed door, remove one
grain from the dolly, lay it on the brass carriage, and close
and lock the holding bars. Then the feed door would be closed
and the large metal door closed. The motor was then started by
a button and the operator used a hand wheel causing the
carriage to travel slowly over the rotating cutter head of the
machine. Each side of the grain would have to be carried
across the cutter head several times before the inhibitor
strip on that side was completely cut off. The amount of the
inhibitor strip which would be cut each time was controlled by
raising or lowering part of the joiner machine so that the
grain would be carried across the cutter head at the proper
height. When the inhibitor strip was removed from one side of
the grain, the helper was supposed to push a button which
turned off the machine. Then the helper and the operator would
open the feed door and the operator would turn the grain over
to proceed with the cutting of the next inhibitor strip.
However, even if the button was not pushed to cut off the
machine, it would be cut off automatically when the feed door
was opened. The cutter head rotated very rapidly and would
continue turning for a short time after the power was cut off.
Frequent inspections were made by Mr. Marsh on behalf of
NFOC and by Lt. Herbert L. White, Naval Security and Safety
Officer, and the men under him on behalf of the Navy. Mr.
Frank R. Renfrow and Mr. James P. Cooper were civilian safety
inspectors employed by the Navy and were working under Lt.
Renfrow was very zealous in his work and made frequent
inspections of the facilities under the control of NFOC. If
Renfrow found anything being done which was a deviation from
the contracts or was a hazard to Government property or
personnel, he would call the matter to the attention of the
supervisor of the particular area. If the supervisor agreed
with Renfrow's suggestions, he would comply with them. If not,
Renfrow would take the matter up with Lt. White. If it was
something of a minor nature, White would contact NFOC and
discuss the situation. If it were of a serious nature, White
would report the condition to the commanding officer, who in
turn would take the matter up with Mr. Arthur H. Bird, Plant
Manager of NFOC.
Renfrow and the other Navy inspectors had no authority to
give orders to NFOC personnel, although it appears that
sometimes Renfrow exceeded his authority and attempted to give
such orders. In one particular case involving the Fire
Department, Mr. Bird ...