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Nelson v. Union Wire Rope Corp.

JANUARY 30, 1963.




Appeals from the Superior Court of Cook County; the Hon. HENRY W. DIERINGER, Judge, presiding. Affirmed in part and reversed in part.



Rehearing denied January 30, 1963.

January 4, 1963. Supplemental opinion,

After thirteen weeks of trial on the claims of eighteen plaintiffs for personal injuries and wrongful deaths, judgments were entered on jury verdicts finding the defendants Union Wire Rope Corporation and Archer Iron Works not guilty, and finding the defendant American Mutual Liability Insurance Company guilty. Damages were assessed in a total amount of $1,569,400.

Four appeals have been filed. Plaintiffs have appealed from the not guilty judgments, and American has appealed from the judgment against it. As to the latter, plaintiffs have filed a cross-appeal.

The event which forms the basis of the complaint occurred on March 19, 1957 at the construction site of the Duval County Courthouse in Jacksonville, Florida, and Florida law governs the substantive rights of the parties. (Mithen v. Jeffery, 259 Ill. 372, 102 N.E. 778.) Nineteen workmen (including the eighteen plaintiffs *fn1) were riding on the platform of a hoist which fell from the sixth floor level when a cable broke. Seven were killed and the others were injured. No action was brought on behalf of one of the decedents. Two of the plaintiffs were employees of the general contractor, George D. Auchter Company, which owned and operated the hoist, and the others were employees of Auchter's subcontractors.

The original complaint was filed by two plaintiffs against Archer, manufacturer of the hoist, and Union, manufacturer of the cable. Later on, sixteen plaintiffs sued the same two defendants along with American, the workmen's compensation and public liability carrier for Auchter. American was then added as a defendant in the original complaint and all actions were consolidated.

The complaint against Archer charged that it negligently designed and constructed the hoist and its safety devices; negligenly sold the hoist to Auchter with knowledge that it was imminently dangerous because its safety devices were defective; negligently failed to inspect or test the hoist; and negligently failed to warn plaintiffs that the safety devices were inadequate. The complaint also charged that Archer had warranted that the hoist and its safety devices were reasonably fit for the purpose for which they were sold, whereas they were unsafe and defective.

Archer denied all charges of negligence and alleged that the occurrence in question was caused solely by negligence on the part of Auchter. Archer admitted that it had warranted the hoist to be fit for the purpose of hauling a reasonable amount of material, but denied any warranty of fitness for the hauling of personnel. It also denied that it had breached any warranty.

As to Archer, it is plaintiffs' theory on appeal that, under the evidence, this defendant was guilty of both negligence and breach of warranty as a matter of law, and that, therefore, the not guilty judgment should be reversed with judgment here for plaintiffs on the question of liability, and remandment for a new trial on the question of damages only.

The complaint against Union charged that it negligently manufactured the cable; negligently sold the cable, knowing it to be defective or dangerous when used for the purpose intended; negligently failed to inspect and test the cable; and negligently failed to warn plaintiffs that it was defective. The complaint also charged that Union had warranted the cable to be reasonably fit for the purpose for which it was sold, whereas it was unsafe and defective.

By its answer, Union denied all allegations of negligence, denied proximate cause, and, as to the warranty charge, denied privity of contract and denied that it had sold or warranted the cable to be fit for any particular purpose. It also denied that it had breached any warranty or that the cable was defective.

As to Union, it is plaintiffs' theory on appeal that the not guilty judgment should be reversed and the cause remanded for a complete new trial because of erroneous rulings of the trial court on the admission of evidence, and because of improper conduct on the part of Union's counsel. *fn2

The complaint against American charged that, either gratuitously or pursuant to its compensation and liability policies with Auchter, it had undertaken to inspect Auchter's safety practices and machinery, including hoists, and had represented that it would report to Auchter any unsafe practices or conditions found. It was also alleged that Auchter expected such reports to be made. The complaint further charged that American, having thus assumed the duty to make safety inspections, was negligent in the performance of such duty in regard to the hoist and as a proximate result thereof plaintiffs were killed or injured. Further, and more specifically, American was charged with having negligently failed to detect and report: that the hoist's safety devices were inadequate and defective; that the tower was improperly designed and manufactured in regard to its safety mechanism; that the cable was in a worn condition; that the hoist was being used for the hauling of personnel, in violation of a city ordinance; and that a sheave on the hoist was of improper size, in violation of a city ordinance. It was also charged that American observed but negligently failed to warn Auchter or its personnel, including plaintiffs, against the practice of carrying personnel on an improperly equipped hoist which it knew or ought to have known was hazardous.

American denied each of the negligence allegations: denied that it had assumed the duty alleged; admitted that it had made intermittent inspections for the purpose of keeping itself advised on the risk which it insured. American pleaded further that it never undertook any control or responsibility for the hoist or its cable or sheave; had nothing to do with their design, manufacture, purchase, installation or maintenance, and assumed no duty in connection therewith. This defendant also pleaded that, because it was Auchter's compensation carrier, it was not subject to suit as a third party tort-feasor under the Florida compensation statute; that, if American were to be considered as having performed safety engineering duties on behalf of Auchter, it would thereby have become a subcontractor, and thus also immune from plaintiffs' suit under the same statute. It also pleaded that plaintiffs had been guilty of contributory negligence and had assumed the risk involved in riding on the hoist.

It is the position of American on appeal that it is entitled to a not guilty judgment as a matter of law, and that, therefore, the judgment against it should be reversed. In the alternative, its theory is that, because of various errors in the course of the trial, the cause should be remanded for a new trial on the issue of liability only.

With respect to their cross-appeal against American, it is plaintiffs' contention that the damages awarded were inadequate, and that, because of trial errors, the judgment against American should be reversed and the cause remanded for a new trial on the issue of damages only.

The facts in their general outline are not in dispute.

Late in 1955 Auchter decided to buy an Archer construction hoist for use at its Duval County Courthouse project. It purchased such a hoist from Moody & Sons, a manufacturers' representative in Jacksonville. The parts for the hoist were manufactured by Archer and shipped direct to Auchter, together with blue-prints for its erection. Archer did not supply the motor or the cable.

The hoist consisted of a double-welled tower, 130 feet high, constructed of three-inch standard tubular steel in which two skeletal cages, or bails, could be raised and lowered. The bails were so designed that either a platform 6 1/2 feet square or a large concrete bucket could be attached. The occurrence in question took place in the south tower where a platform was in operation, while a concrete bucket was employed in the north tower.

The bail, with the platform attached, was raised and lowered by steel cable and moved along vertical guide rails on each side. The hoist was equipped with a "broken rope safety," consisting of two serrated jaws, or "dogs," attached to the bail. The jaws were designed to be forcibly extended outward to engage the two guide rails whenever pressure was released on the cable, thus arresting the gravitational fall of the platform by the metal friction produced between the dogs and the rails.

The south hoist was erected in May, 1956 and was continuously in use until the time of the accident ten months later. The cable employed in the tower was a 3/4 inch steel wire rope manufactured by Union in March, 1956 and purchased by Auchter from a dealer in Jacksonville. The hoist was put up and rigged, and later rerigged, by employees of Auchter under the supervision of a mechanic and yard master who was not an engineer and had not had previous experience in rigging a construction hoist.

As originally erected, in accordance with Archer's design, the tower was rigged with a "one-part line." The cable was affixed to the top of the bail, ran to the top of the tower and over two grooved pulley-type wheels, or sheaves (making a 90° bend in passing over each of the two sheaves) and then down to another sheave at the bottom of the tower and around a drum which was activated by a motor. These three sheaves were supplied with the tower by Archer, and each had an inner diameter of 16 inches.

Upon erection of the tower, and before it was put in use, the safety devices were tested by Auchter, and found to be operating. Shortly thereafter, Hodge, Auchter's superintendent, decided to slow down the speed of the platform and, to accomplish that result, rerigged the cable with a "two-part line." Another sheave, approximately 10 inches in diameter, was affixed to the top of the bail. This sheave was not new, but used, and was procured from Auchter's yard. The end of the cable which previously had been attached to the top of the bail, was now attached to the top of the tower from where it ran down to the bail, around the 10-inch sheave, back up to the original sheaves at the top of the tower, and then down to the drum, as before. The cable was, thus, bent through 180° in passing around the 10-inch sheave on the top of the bail. A new cable was installed and the safety devices were again tested by Auchter two or three times that day.

Oral and written recommendations were made to Hodge and to Auchter, respectively, by the Florida Industrial Commission *fn3 that workers should not be permitted to ride the hoist except when oiling or repairing guides. Hodge issued directions at the outset that no personnel were to ride the hoist, and these orders were never changed, although there was no evidence that plaintiffs had ever personally been instructed not to ride the hoist. When first put in operation, the hoist was used exclusively for the lifting of materials and equipment. As the structure increased in height to the third or fourth floor, however, there was so much complaint from the workmen about climbing the stairs that Hodge decided to "go along" with the common practice in the city of permitting the men to ride the hoist. Thereafter, he knew that they were riding the hoist daily, and he rode it himself. Others of Auchter's supervisory personnel also used the hoist repeatedly.

The operator of the hoist testified that, on instructions from Hodge, he tried to limit to six the number of men riding the hoist, but that he did not succeed, particularly when the platform was being lowered, as he then had no control of the number getting on. There was also evidence that the stairways were ill-lit; that, on occasion, they were littered with waste material; and that sometimes they were closed.

On the day of the accident, at quitting time in the afternoon, nineteen workmen got on the hoist platform at the fifth floor level. The operator, on the ground, saw that they were getting on, and kept his foot on the brake holding the cable at the drum. He watched for a signal to lower the platform, but there was no signal. Without his releasing the brake, the cable eased down three or four inches, and then broke. The safety dogs engaged the guide rails, but failed to hold, and the platform fell to the ground, resulting in the death or injury of all the men aboard.

Fault on the part of Auchter is not an ultimate issue in this case. *fn4 It is the contention of Archer, however, that the record clearly establishes that Auchter failer to assemble the hoist as directed by Archer's blueprints; that Auchter failed to make proper inspections of the hoist and its cable; that it used, or permitted its employees to use, the hoist for the carrying of passengers, in violation of law; that, in so doing, it grossly overtaxed the safety devices which were not designed for the safety of personnel or for the weight carried at the time of the accident; and that all of these negligent acts, or failures to act, on the part of Auchter were the cause of the accident to the exclusion of any fault on the part of Archer.

The record does show conclusively that, in the erection of the hoist, Auchter deviated from Archer's plans and recommendations in three major respects.

At the base of the hoist the concrete posts, into which the guide rails were set, were 1 3/16 inches farther apart than directed in the blueprints. In view of the type of safety devices employed, it is apparent that such a widening of the space between the guide rails would diminish the force with which the dogs would grip the rails, thus reducing the cutting and friction which were relied on to arrest the fall of the platform toward the bottom of the tower. This proposition is also abundantly supported by expert testimony.

A 60 horsepower motor was used instead of the 50 horsepower recommended by Archer. It is not clear that this caused the platform to move faster than it would otherwise have done, but it does present a question of fact in that regard.

In any event, the hoist did operate at a speed greater than was desired by Auchter, and this prompted the changing of the rigging. As has been mentioned, the "two-part line" rigging involved the use of a 10-inch sheave (furnished by Auchter) at the top of the bail, whereas the other sheaves (furnished by Archer) were 16-inch. The witnesses agreed that the size of a sheave, over which a 3/4 inch steel cable passes, has a very important bearing upon the rate at which the cable will wear out. In comparing 16-inch and 10-inch sheaves, plaintiffs' own expert testified, for example, that the cable would wear out 2 1/2 times faster when used with the smaller sheave. Other witnesses testified to higher ratios, up to four or five times as fast. *fn5 Furthermore, the second rigging required a bending of 180° around the smaller sheave, whereas the plans called for two separated 90° bends around the larger sheaves.

The record also makes it plain that the fit of a cable into the groove of a sheave is an important factor in cable wear. The 10-inch sheave supplied from Auchter's yard had been used before, was in worn, rough and corrugated condition, and the contour of its groove did not fit the contour of the cable.

Inspection of the hoist and particularly of the cable, was made by a general construction foreman for Auchter. He had worked on construction jobs for 22 years; was concrete foreman on this job, and also was general supervisor of other labor foremen. He had never had any instruction or special training in the maintenance of hoists and had been given no material on the subject, his knowledge having come solely from experience.

The inspections were made every ten days or two weeks, on which occasions the foreman was raised on the platform to the top of the tower and then lowered slowly. This enabled him to make a visual inspection of the cable as it passed over the sheave at the top of the bail. The cable was kept greased by periodic application of a heavy, dark-colored lubricant and it was the cable thus lubricated which was inspected, since the foreman did not remove the grease for the purpose of looking at the metal of the cable itself. He looked for broken wires or spurs but never saw any. He did not use any instrument to inspect the inner part of the cable, nor did he run his hand over the cable to check for spurs. The inspector would not devote the entire trip on the hoist to inspection of the cable, as he also would take a general look at the whole working apparatus of the tower, including the guide rails. Each inspection involved only one trip on the hoist.

Expert witnesses testified that inspections at ten-day intervals are not sufficiently frequent; that parts of the cable should be cleaned of grease to insure adequate inspection of its exterior metal where broken wires would then be visible to the naked eye; that broken wires are evidence of wear, although there is some tolerance in this regard; that a magnifying glass should also be used in the inspection of a cable, with a hammer to check cracks; that a marlin spike should be used to separate strands of the cable to locate interior breaks; and that a gauge should be used to check the grooves of the sheaves.

The 3/4 inch steel cable in question was part of a 10,000 foot reel which had been shipped by Union to its dealer in Jacksonville. It consisted of six strands of 25 wires each, or a total of 150 wires. The cable had a catalogue rated strength of 46,000 pounds, and doubling the cable (by "two-part line" rigging) roughly doubled its load capacity.

Expert witnesses examined and tested the broken cable after the accident. There was testimony on behalf of plaintiffs that the cable's wires were brittle, and, thus, excessively susceptible to fracture; that this was a defective condition indicating improper manufacture. Plaintiffs' witnesses discounted the possibility that the breaks were the result of metal fatigue, although one of them calculated that the break in the cable occurred at a spot which passed over all three sheaves.

On the other hand, expert witnesses testified on behalf of Union that there were hundreds of fractured wires in the twenty feet of cable near the point of separation and that they were fatigue fractures; that breaks in external wires tend to curl or "spur" and a hoisting cable having 10% of the wires broken (in a running foot) should be discarded; that these breaks in the wires were evident through the grease which covered the cable; *fn6 that laboratory tests of the wires which had broken indicated the chemical content of the steel to be within normal limits; that there was no evidence of brittleness; that sections of the cable involved in the accident were subjected to tensile tests and the lowest point at which the strands began to fracture was 47,850 pounds.

Plaintiffs base their negligence charge against Archer on the line of cases stemming from MacPherson v. Buick Motor Co., 217 NY 382, 111 N.E. 1050 and including Tampa Drug Co. v. Wait, 103 So.2d 603 (Florida 1958). The principle declared in those cases, eliminating the requirement of privity and establishing the correlative duty to manufacture with due care in regard to foreseeable use of the commodity, is not contested here. Its applicability is, however, very much in dispute.

A substantial part of plaintiffs' brief is devoted to argument that Archer was negligent in not adopting a plan which would produce a safe hoist, in not selecting proper materials and parts, and in not making proper tests during manufacture and after completion of the hoist (relying upon Comment C to Section 398 of the Restatement of the Law of Torts). Many references are made to the record to show that the safety devices, as designed, would not hold a loaded concrete bucket and that such a loaded bucket would weigh more than the platform with nineteen men aboard; that Archer had bought standard steel piping for its towers and did not develop extraordinary specifications calculated to meet the special requirements of the guide rails; that the tower had not been tested by Archer since the tests which were made at the time of its design in 1928 when the tower was put into production; that the final product in this case was never assembled and tested by Archer *fn7 for operation of the safety devices; and so on.

Archer's brief seeks to answer these contentions by further record references and arguments. We believe, however, that it is unnecessary to consider these points raised by plaintiffs because they necessarily fall with our determination of a proposition which is basic to all of them, and that is the principle that the standard of care required of a manufacturer must be related, through reasonable foreseeability, to use of the product for the purpose for which it is manufactured.

This subject is well covered by the very sections of the Restatement on which plaintiffs so strongly rely. They are:

Sec. 395 — A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for the purpose for which it was manufactured and to those whom the supplier should expect to be in the vicinity of its probable use, is subject to liability for bodily harm caused to them by its lawful use in a manner and for a purpose for which it was manufactured.

Sec. 398 — A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured, is subject to liability to others whom he should expect to use the chattel lawfully or to be in the vicinity of its probable use for bodily harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design. (Emphasis supplied.)

In this regard the jury was properly instructed that Archer was required "to use due care and caution in the manufacture and testing of its product for its intended use." The jury having found Archer not guilty, the question, *fn8 as to this point, then becomes whether or not there was any evidence which, taken with its intendments most favorable to Archer, tends to support the verdict. (Pennington v. McLean, 16 Ill.2d 577, 582, 158 N.E.2d 624.)

[6-8] We believe that the record amply supports Archer's position that the tower was manufactured for use solely as a material hoist and for no other purpose; and that Archer, therefore, was not required to equip such a hoist with the safety mechanisms of a passenger elevator. *fn9 Nor was Archer required to foresee that the hoist would be used to transport personnel, in apparent violation of a Jacksonville ordinance prohibiting the use of a "platform elevator" for passenger service. *fn10

The bills of sale from Archer to Moody and from Moody to Auchter show that the hoist was sold and bought as a "3 wheel-barrow tower." This description was also used in Archer's advertising. Witnesses explained that this description indicated a tower with a capacity designed for the lifting of a platform carrying three wheelbarrows loaded with concrete. Further there was evidence that the total weight of the bail, platform and three full wheelbarrows was about 2300 pounds; that the safety devices were adequate for that weight; that the tower itself would safely support the weight of a full concrete bucket (approximately 7000 pounds), but that the safety devices would not hold such a bucket when loaded and were never intended to do so.

An expert witness who examined the equipment after the accident testified that marks on the guide rails indicated that the dogs had engaged the rails continuously except for short distances; that there was no malfunction of the safety devices; that they performed perfectly within the limits of their capacity and were not in any way defective; that they were not designed to hold a platform carrying nineteen men; that, by the pressure of the cutting edges of the dogs against the rails and the friction developed between them, the dogs had destroyed themselves in the manner intended; that the condition of the dogs and the rails indicated that there could not have been a free fall of the platform.

There was some contrary expert testimony introduced on behalf of plaintiffs, but in our consideration of this phase of the case we are concerned only with evidence tending to sustain the verdict.

We conclude, then, that there was evidence on the basis of which the jury could properly have determined that Archer was not negligent in the manufacture of the hoist for the purpose for which it was intended lawfully to be used.

What we have said, in this regard, concerning negligence applies also to plaintiffs' contention that Archer was liable for breach of implied warranty. As stated in plaintiffs' brief, their point is that "when the seller knows the use for which an article is purchased, an implied warranty of its fitness for such purpose arises as a matter of law."

Archer argues two points in this regard. First, it says that the case of Continental Copper & Steel Industry v. Cornelius, 104 So.2d 40 (Fla App, 1958), relied on by plaintiffs to impose an implied warranty without privity, does not extend the rule beyond a purchaser; that since plaintiffs were not purchasers anywhere in the chain there was no contractual relationship to which a warranty could attach. Second, Archer argues, the basic factual requirement for warranty is absent, being the situation in which a buyer's desire for a product to meet a particular need, or for a particular purpose, is made known to the seller and in making the purchase the buyer relies on the skill, judgment or experience of the seller.

Plaintiffs' response to both these points is that an implied warranty carries with it an absolute liability which runs with the chattel, eliminating the necessity of any kind of privity, citing Matthews v. Lawnlite Co., 88 So.2d 299 (Florida, 1956), and Carter v. Hector Supply Co., 128 So.2d 390 (Florida, 1961).

Because of the view we take of the scope of such a warranty, if there were one, we consider it unnecessary to determine these points or comment on the cases cited pro and con in the briefs. It may be, as contended by Archer, that the principle of warranty is not applicable at all to the facts of this type of case, but, if it were applicable, such a warranty would also be limited in scope to fitness of the article for the purpose intended.

Here, again, we believe that there was evidence on the basis of which the jury could properly have determined that there was no breach of implied warranty, since the use of the hoist at the time of the accident was outside the scope of the purpose for which it was intended.

Plaintiffs' next argument concerns alleged improper conduct on the part of Archer's attorney. In considering this point, and others relating to alleged errors of the trial court, it should be borne in mind that this was a thirteen-week trial. It seems unlikely that there ever have been thirteen weeks of hotly contested jury trial in which there were not some errors committed by the trial judge and some conduct on the part of ardent advocates which was not entirely proper. In so stating, we do not believe that we encourage the lowering of professional standards, but merely place in their proper perspective the mistakes which both court and counsel will ever seek to avoid, but probably never with complete success.

It is against this background, then, that we shall consider the question, properly put by plaintiffs, as to whether or not conduct of counsel, or trial court errors deprived plaintiffs of a fair trial. We believe that they did not.

On the strength of Chicago City Ry. Co. v. Gregory, 221 Ill. 591, 77 N.E. 1112; Emich v. Citizens Trust & Sav. Bank, 321 Ill. 518, 152 N.E. 580; and Paliokaitis v. Checker Taxi Co., 324 Ill. App. 21, 57 N.E.2d 216, plaintiffs contend that persistent efforts were made by Archer's attorney to introduce inadmissible testimony and documents, and that, particularly as to the latter, plaintiffs were prejudiced before the jury in being called upon to interpose repeated objections. As to the latter, they also cite Moore v. Daydif, 7 Ill. App.2d 534, 130 N.E.2d 119 and Smith v. Johnson, 2 Ill. App.2d 315, 120 N.E.2d 58.

In each of the several instances urged upon us, the trial court sustained plaintiffs' objections, and we believe that to reverse this case under these circumstances would be to give the point a weight all out of proportion to its importance in the record. *fn11 Furthermore, most of the evidence complained of was subsequently admitted ...

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