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Day v. Barber-colman Co.

JUNE 14, 1956.

RICHARD S. DAY, PLAINTIFF-APPELLANT,

v.

BARBER-COLMAN COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Winnebago county; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding. Affirmed.

JUSTICE CROW DELIVERED THE OPINION OF THE COURT.

The plaintiff, Richard S. Day, obtained a verdict for $9,500 by a jury against the defendant, Barber-Colman Co., for injuries received while he was assembling and installing an overhead vertical door manufactured and sold by the defendant. The trial court granted a motion of the defendant for judgment notwithstanding the verdict and entered a judgment for the defendant. The plaintiff appeals from that judgment.

The complaint charges that on February 12, 1951, the plaintiff was employed by one A. Dobnick of Rockford; that Dobnick was requested by the defendant to install the overhead, vertical door which it manufactured and had sold to the Yates American Machine Company in Beloit, Wisconsin, to be used in their factory; and that while the plaintiff was assisting in such installation and while in the exercise of due care and caution, and as a proximate result of defendant's negligent conduct, the door fell upon him, by reason of which he was severely injured and suffered great damage. The complaint, in substance, charged the defendant with negligently failing to have a proper stopping device on the door which would have prevented it from falling upon the plaintiff during assembly and installation, and in failing to have any stopping mechanism that would prevent the turnbuckles from breaking if the door became overbalanced and began to fall. The defendant's answer denied the allegations as to the plaintiff's due care, the defendant's duty, negligence, and proximate cause. Other features of the pleadings need not now be noted. The plaintiff's theory is that the defendant was negligent in the design, manufacture, and testing of the door.

The defendant's theory is that there was no evidence fairly tending to prove negligence, proximate cause, or absence of contributory negligence, and there was affirmative proof of contributory negligence, as a matter of law.

Many of the facts are not in dispute. The assembling and installation of the door, weighing some 500 pounds, took place at the plant of the Yates American Machine Company in Beloit. The plaintiff was on and prior to February 12, 1951 employed by Dobnick, was a licensed and experienced mechanic, on that date was assisting Dobnick in the installation, and was working below the door, engaged in picking up some tools, block and tackle, etc. The door, manufactured and sold by the defendant, was suspended in its tracks in the "up" position and remained "up" possibly for as long as 15 minutes before it fell. The total weight was approximately 1,000 pounds, comprising a 500 pound door and 500 pounds of weights holding it up. It was designed to go straight up and down by rollers thereon set in tracks on either side similar to a residential garage door, assisted by counterbalancing weights suspended by chains attached by turnbuckles designed to adjust the length of the chains. The door was motionless immediately before it fell. Dobnick was at the time securing some weights in place. The plaintiff knew, of course, that if at a particular point in the assembling process the installer had overbalanced the door with weights so that it was then weight heavy and door light, the door necessarily would rise, unless some mechanical steps had been taken to prevent its rising, and, as the plaintiff says, it would have been common sense to anchor it. The door was open, or in an up position, just before the incident happened, and the installers were preparing to attach the last weight. For some reason the door suddenly moved from its stationary position, evidently rose too high, the turnbuckles broke from the weight of the door causing them to rise over the sprocket wheels, which accommodated the chains holding the weights, and the door then fell, striking the plaintiff.

The plaintiff had never received any personal instructions as to this particular installation, but there were printed instructions from the defendant (though they were not in evidence, and there was no evidence as to what they were). He had been trained on the job by the defendant and Dobnick, and had previously installed many other similar doors, but none of this particular type. At the time, he was working, he said, in accordance with the written instructions, and he had had no prior accident of this type.

The various sections of the door, to be set in the tracks and hinged together, and the other parts of the door assembly, were manufactured by the defendant and sent by it in disassembled parts to the place of installation, to be assembled and installed by the installer; they were assembled and installed by the use of a block and tackle; it was necessary to raise the door manually during assembly and installation by block and tackle, to insert the several sections and attach the counterbalancing weights; and it was supported thereby during that time. After the installation was completed, an electric operating device would control, move, and stop the door. The plaintiff knew he could effectively arrest the movement of the door up or down during assembly and installation by means of what are called "C" clamps and a block (and evidently the block and tackle also aided in controlling the door during that process). He had, in fact, used a "C" clamp, a simple mechanical device, during some part of this particular installation, which clamp was put in the track and roller mechanism in order to hold a wedge in place and thereby keep the door from moving while being installed. There were no stops, however, included in the box sent by the defendant for the installer to arrest the movement of the door during assembly and installation. The turnbuckles were not designed or intended to bear the kind of bending stress they received here; they are not stopping devices, but are designed to adjust the length of the chain. The plaintiff knew the electrical operating device had not yet been installed.

The disassembled parts of the door when assembled and installed formed a safe door, with an electrical control device to control its movements. There is no proof the door when installed was not a safe, properly functioning door. Dobnick was an independent contractor engaged in the business of assembling and installing such doors, was in complete charge of that process, and the defendant had and exercised no control over that.

The plaintiff called one Harold Kelton, an engineer, as a witness, who was formerly employed by the defendant in charge of engineering of the door division, and he was familiar with the door here involved. He said there was no convenient or customary way to install the electrical control device for the door until after the door was installed. He said when the door got around the turnbuckles and the turnbuckles got around the sprocket wheel there was a bending stress and the turnbuckles bent and broke. In his opinion, if a block or "C" clamp had been securely fastened at the time, the door would not have risen. He testified that the door at that time was not equipped with a staggered lift chain. The purpose of a staggered lift chain would have been to stagger the turnbuckles on either side one higher than the other, so that if the door during installation ever went high enough and the turnbuckles went over the sprockets, one turnbuckle would break before the other broke, thus supporting the door at least from one side only, causing it to bind in the tracks rather than fall straight down. He also said he had something else besides a possible staggered lift chain in mind that would have prevented the door going up and over the turnbuckles (though what he had in mind he did not say). He testified further, however, that he had had nothing in mind for a staggering arrangement of the chain (or anything else of a similar nature apparently) at the time of or prior to the incident here concerned, there were no plans at that time for any stop on the door during installation, and evidently a so-called staggered lift chain was not at that time in the industry an accepted or customary part of the art of manufacture of the door. There is no evidence that at that time any different general design for a door of this type than the one here involved was in common or accepted use in the industry, or that this design had been found to be unsafe. His testimony as to some possible change in design related to a matter apparently occurring to him some years after this incident. His testimony in that respect was given some four years after this door was installed.

It appears that a "C" clamp is one of the standard, ordinary installation tools or means used by installers in the process of installation. It is used to keep the door from going up or down during assembly and installation, if it is securely fastened. The "C" clamps had been brought to the job by the installers in this case, had at times been used here, but apparently were not in use at the particular time this door fell.

The door was not a new type of door. It was made according to a standardized design or drawing, modified only as to size to fit a particular opening for which it was designed. There is no proof of any defective materials used by the defendant in the manufacture of the disassembled parts of the door, or of any failure to use due care as to any testing or inspecting thereof, or of what testing and inspecting procedures were at the time current in the industry, or considered adequate.

[1-3] We are confronted at the outset with the question as to whether there is any competent evidence, standing alone, together with any reasonable inferences to be drawn therefrom, taken with its intendments most favorable to the plaintiff, to support the charge that the defendant was negligent in the design or manufacture of the door, or to prove the other material elements of the plaintiff's case. If not, the defendant's motion for judgment notwithstanding the verdict was properly allowed: Lindroth v. Walgreen Co. (1950) 407 Ill. 121. Upon such a motion we can consider only the competent evidence: Hunter v. Troup (1924) 315 Ill. 293. Evidence that has no probative force, whether objected to or not, cannot be considered: Knudson v. Knudson (1943) 382 Ill. 492. Evidence sufficient to defeat such a motion must be evidence upon which the jury could, without acting unreasonably in the eyes of the law, decide in favor of the plaintiff: American Nat. Bank v. Woolard (1930) 342 Ill. 148; Provenzano v. Illinois Cent. R. Co. (1934) 357 Ill. 192.

A manufacturer, under Illinois law, is not liable in damages to persons with whom it has no contractual relations and is not in privity for personal injuries or property damages sustained by such persons because of the alleged negligent manufacture of a product, except where the product is inherently, normally, and imminently dangerous, and except where, though not inherently, normally, or imminently dangerous, its nature is such that it may become so if negligently manufactured: Rotche v. Buick Motor Co. (1934) 358 Ill. 507. Other cases to the same effect are: Field v. French (1898) 80 Ill. App. 78; Shepard v. Kensington Steel Co. (1931) 262 Ill. App. 117; Alschuler v. Rockford Bolt & Steel Co. (1943) 318 Ill. App. 564; Beadles v. Servel Inc. (1951) 344 Ill. App. 133. Another exception has also been said to be where the manufacturer's negligence consists of a fraudulent or deceitful statement or misrepresentation: Miller v. Sears, Roebuck & Co. of Illinois (1928) 250 Ill. App. 340. And in those excepted cases where, regardless of the presence or absence of contractual relations or privity, there may possibly be a liability, the mere fact that an accident resulting in an injury to person or property occurs does not authorize a presumption or inference that the manufacturer of the product was negligent; the burden is on the plaintiff to prove by competent evidence, direct or circumstantial, that the manufacturer was negligent in the manufacture of the product: Rotche v. Buick Motor Co., supra; Lindroth v. Walgreen Co., supra.

The parties appear to have tried this case on the basis that Illinois law applies, or that Illinois law and Wisconsin law in this respect are the same, as apparently is the case: Reed & Barton Corp. v. Maas, 73 F.2d ...


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