(caption unavailable)

* Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-7214
Summary Calendar
MANUEL PEREZ, and
MARIA CONCEPTION PEREZ,
Plaintiffs-Appellants,
VERSUS
BUCYRUS-ERIE COMPANY, ET AL.,
Defendants,
BUCYRUS-ERIE COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(CV-L-89-18)
__________________________________________________
December 21, 1993
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
PER CURIAM:*
In the 1930s and 1940s, the Bucyrus-Erie Company ("Bucyrus-
Erie") began designing and manufacturing the Model 1050-B,
stripping shovel to remove overburden and extract coal from the
ground. The particular shovel involved in this case was

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manufactured by Bucyrus-Erie in 1952, and originally sold to
Ayrshire Collieries Corporation in Indiana. The shovel was sold by
Ayrshire to Farco Mining Company, which has been the owner and
possessor of the shovel since 1979 and has been operating this
stripping shovel near Laredo, Texas. On May 23, 1987, Manuel Perez
("Perez"), a Farco employee, was severely injured while performing
his duties as an oiler on the shovel, when he lost his footing and
his hand slipped through a triangular opening in the steel guard
protecting the gear mesh or "nip" point, and his hand was amputated
by the gears. The shovel, as originally designed and manufactured,
was equipped with a solid metal guard covering this nip point.
However, sometime prior to Perez's accident, some unknown third
party, for an unknown reason, cut away a portion of this protective
guard. Perez brought suit on a theory of strict products liability
in state court, and Bucyrus-Erie removed the case to the federal
district court on diversity of citizenship. Following a two-day
trial, the jury returned a verdict in plaintiff's favor, and the
district court entered judgment initially on the verdict. Bucyrus-
Erie timely filed a Motion for Judgment pursuant to Fed. R. Civ. P.
50 and briefs and reply briefs in support and opposition to this
motion were subsequently filed with the court. The district court
ultimately issued its memorandum, order and judgment in favor of
Bucyrus-Erie on the grounds that the evidence, even when viewed in
the light most favorable to Perez, fails to establish any
objectively foreseeable grounds for the removal of the triangular
portion of the guard covering the dangerous nip point. The trial

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hrd 3
court further found that the entire guard was on the shovel when it
was manufactured by Bucyrus-Erie and when it left Bucyrus-Erie's
control; and that had the triangular portion of the guard not been
removed Perez would not have been harmed.
We have carefully reviewed the briefs, the reply brief, the
record excerpts and pertinent portions of the transcript of
testimony; and have concluded that, for the reasons set forth in
the trial court's memorandum and order filed under date of February
10, 1993, the trial court correctly granted Bucyrus-Erie's motion
for judgment pursuant to Rule 50 F.R.C.P. See also Daberko v. Heil
Co., 681 F.2d 445, 450 (5th Cir. 1982), Trevino v. Yamaha Motor
Corp., U.S.A., 882 F.2d 182 (5th Cir. 1989); Melton v. Deere &
Company, 887 F.2d 1241 (5th Cir. 1989); and Lloyd v. John Deere
Co., 922 F.2d 1192 (5th Cir. 1991).
Accordingly, we AFFIRM the judgment entered by the trial
court.

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