UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GARY CROWELL,
Plaintiff-Appellant,

v.
                                                                    No. 99-2027
ANGELUS SANITARY CAN MACHINE
COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CA-99-19-2)

Argued: June 9, 2000

Decided: July 19, 2000

Before MICHAEL and TRAXLER, Circuit Judges,
and BUTZNER, Senior Circuit Judge.

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Reversed and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: William Revell Lewis, III, CURTIS, LEWIS & DIX,
L.L.P., Accomac, Virginia, for Appellant. Archibald Wallace, III,
SANDS, ANDERSON, MARKS & MILLER, Richmond, Virginia,
for Appellee. ON BRIEF: M. Ann Neil Cosby, SANDS, ANDER-
SON, MARKS & MILLER, Richmond, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Gary Crowell appeals from a jury verdict in favor of
Angelus Sanitary Can Machine Company ("Angelus") on Crowell's
products liability claim. We reverse and remand for a new trial.

I.

Crowell worked as a maintenance mechanic for Eastern Shore Sea-
food Products Company ("Eastern Shore"), a processor of sea clams
and clam juice. In its juice-canning process, Eastern Shore uses a
"filler" machine and a can seaming machine (the "seamer"). The filler
receives empty cans and fills them with clam juice. A conveyor then
moves the cans to the adjacent seamer, which puts lids on the cans
and seals them. The seamer's "starwheel," a spoked wheel with six
equally-spaced fingers, rotates and feeds the cans into the seamer. The
seamer used by Eastern Shore was designed and manufactured by
Angelus, the defendant in this action.

Crowell reported to work early one morning, approximately an
hour before the juice-canning line started operating for the day, to
modify the filler machine. He locked out the filler to prevent it from
being activated while he was making the modifications and ascer-
tained that the power switches for the seamer were off and that the
seamer was not running.

Crowell completed the modifications to the filler approximately
thirty minutes before the normal start-up time for the juice line. He
left the juice line to put away some of his tools and returned with a
hose to wash any metal shavings out of the filler. As Crowell was
standing near the seamer hosing out the filler, an unidentified third
party activated the seamer.* Crowell, who was wearing earplugs as
_________________________________________________________________
*The parties stipulated at trial that the seamer was activated by an "un-
known third party." J.A. 45

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required by his employer, did not hear the seamer being activated.
The rotating starwheel grabbed the handle of a wrench in the pocket
of Crowell's coveralls, and he was pulled in towards the seamer. The
fingers of the starwheel cut into Crowell's right leg, severing muscles
and nerves. Crowell was hospitalized for nine days and out of work
for almost one year.

Crowell sued Angelus in Virginia state court, contending that the
seamer was defective because it did not have a guard around the star-
wheel. Angelus removed the action to federal district court on the
basis of diversity of citizenship. At trial, the district court sua sponte
instructed the jury on contributory negligence, and the jury returned
a general verdict in favor of Angelus.

II.

On appeal, Crowell contends that the district court erred by
instructing the jury on contributory negligence because there was no
evidence to support such an instruction. We agree.

In diversity cases, federal courts apply a federal standard when
determining whether the evidence was sufficient to submit a particu-
lar claim or defense to the jury. See Jones v. Meatpackers Equip. Co.,
723 F.2d 370, 372 (4th Cir. 1983). "In the absence of evidence, or
reasonable inferences that can be drawn from the evidence, disclosing
that [the plaintiff] was negligent, the issue of contributory negligence
should not . . . be[ ] submitted to the jury." Id.

The only evidence about the accident and how it happened came
from the testimony of Crowell. Crowell testified that he knew it was
dangerous to work around equipment that was in operation. Accord-
ingly, before he started working on the filler, Crowell locked it down
so it could not be activated, and he made certain that the power
switches for the seamer were in the off position and that the seamer
was not operating. He also testified that, after he had completed the
modification on the filler and he walked back to the juice line with
the hose to wash out the filler, he saw that the seamer was not operat-
ing. We fail to see how this evidence can support any inference of
negligence on the part of Crowell.

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Angelus, however, contends that there are several ways that the
jury could reasonably have found Crowell to have been negligent.
According to Angelus, the jury could have found Crowell to be negli-
gent by (1) working close to the seamer when it was running; (2)
wearing earplugs that masked his ability to hear the seamer being
turned on; or (3) working on the equipment near the time the juice
line was scheduled to begin operating. We disagree.

First, there is no evidence in the record that Crowell could have
modified the filler, as he was required to do by his employer, without
being close to the seamer. Nor is there any evidence from which such
an inference could reasonably be drawn. Thus, there is simply no evi-
dence to support Angelus's speculation about the possibility of other
ways for Crowell to perform his job. Cf. Leech v. Beasley, 128 S.E.2d
293, 299 (Va. 1962) (concluding that trial court properly refused to
give jury instructions that "were not supported by the evidence, and
would have permitted the jury to engage in speculation and conjec-
ture").

Second, Crowell testified that he was required by Eastern Shore to
wear earplugs to protect against the noise in the plant. Although the
juice line was not running when Crowell was injured, Crowell testi-
fied that other departments were running and that the noise level at
the plant was very high. Crowell therefore cannot be considered neg-
ligent for wearing earplugs in accordance with the requirements of his
employer. Cf. Jones, 723 F.2d at 372 ("[A]n employee who is injured
while performing a job in accordance with instructions provided by
the employer is not guilty of contributory negligence unless the dan-
ger is so apparent that no reasonable person would encounter it." (cit-
ing Norfolk & Western R.R. v. Ward, 19 S.E. 849, 850 (1894)).
Moreover, there is no evidence that the seamer was running for any
appreciable length of time before Crowell was pulled into it. Thus,
there is no evidence from which it could reasonably be inferred that
the injury could have been avoided if Crowell had heard the seamer
when it was first started. See Virginia Elec. & Power Co. v. Dungee,
520 S.E.2d 164, 171 (Va. 1999) ("[T]he evidence must also show that
the negligent conduct by the plaintiff was a proximate cause of his
injury.")

Finally, Crowell testified that he began working on the filler at
approximately 7:00 a.m. and began hosing it out at approximately

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7:30 a.m., thirty minutes before the scheduled start-up time for the
juice line. There is no evidence in the record establishing that Crowell
could have or should have come to work any earlier to perform the
modification. Crowell also testified that anyone starting the seamer
would have to walk past him to access the controls, and that the per-
son starting the machine generally tells anyone in the area that the
machine is being activated. Thus, the evidence presented at trial sim-
ply does not support an inference that Crowell was negligent by per-
forming the repairs when he did or that he ignored the danger that the
juice line would be activated during the repairs.

We therefore conclude that the district court erred by instructing
the jury on contributory negligence. And because contributory negli-
gence is a complete bar to recovery in Virginia, we cannot determine
from the general verdict whether the jury's decision was based on a
finding that Angelus was not negligent or a finding that Crowell was
contributorily negligent. Thus, the error in giving the instruction can-
not be considered harmless. See Sunkist Growers, Inc. v. Winckler &
Smith Citrus Prods. Co., 370 U.S. 19, 29-30 (1962) (holding that
when a general verdict may rest on an erroneous ground, and there is
no way to discern otherwise, the verdict must be set aside). Accord-
ingly, we reverse the jury's verdict and remand for a new trial. Given
our disposition of this issue, we need not consider the other issues
raised by Crowell.

REVERSED AND REMANDED

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