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January 5, 1956


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.

Findings of Fact


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 defendant.


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 persons.

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.

A carriage was made for the new machines to convey the grains over the cutter head in order to cut off the inhibitors. The cutter head was a cylinder with blades and was rotated by a "V" belt which encircled a pulley on the motor shaft and a pulley on or near the cutter head. The latter pulley was near the bearings of the cutter head. The control for the carriage was located outside the metal barrier. The machine and carriage were made partly of steel and partly of brass in an effort to avoid sparks Underneath the machine was a metal tank approximately 2 1/2 feet long, 18 inches wide, and 18 inches deep. Water was continually run in the tank and from thence outside the building. There was an air hose which could be used to blow the shavings or particles off the machine and into the water tank. A ventilator extended from the top of the enclosed booth out of the building.

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. White.

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 ...

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