Hastings, Chief Judge, and Schnackenberg and Fairchild, Circuit Judges.
FAIRCHILD, Circuit Judge.
Plaintiff Wasily Dazenko was employed by Burton-Dixie Corporation. While at work his hand was caught between rollers in a loom, manufactured by defendant James Hunter Machine Company. He brought this action for damages for his injury.*fn1 After trial of the issue of liability, the jury found for plaintiff. Trial on the issue of damages followed, and the jury awarded $45,000. Defendant appealed.
The action was brought August 11, 1965. The decision of the Supreme Court of Illinois in Suvada v. White Motor Company,*fn2 eliminating the necessity of proving privity and negligence in so-called products liability cases, had been announced May 20, 1965 and was modified on denial of rehearing September 27, 1965.
It is clear that although Dazenko's complaint was framed in terms of negligence, the issue tried and submitted to the jury was, in the terms of Suvada, whether the arrangement and operation of the rollers in which plaintiff was injured was an unreasonably dangerous condition of the loom, as manufactured by defendant.
It is also evident that defendant claimed, among other things, that plaintiff failed to exercise ordinary care for his own safety, and such failure was a cause of the injury. The Supreme Court of Illinois has now made it clear, in People ex rel. General Motors Corp. v. Bua*fn3 that plaintiff must prove in a products liability case that he "was in the exercise of due care for his own safety."*fn4 The Dazenko trial, however, occurred in September, 1966, and court and counsel did not have the benefit of Bua, decided March 29, 1967. The district court declined, though requested by defendant, to instruct with respect to contributory negligence, and approached that question no closer than to say that if "the plaintiff's conduct was the proximate cause of the accident", the jury must find for defendant.
Defendant contends, on appeal, that (1) there was insufficient evidence on which to base a finding that the rollers presented an unreasonably dangerous condition, (2) that plaintiff was barred by contributory negligence, as a matter of law, and (3) that there should be a new trial on both liability and damages.
We conclude that the record presented jury issues with respect to the existence of an unreasonably dangerous condition and contributory negligence and that there must be a new trial on liability, but not on damages.
Plaintiff's employer manufactures cushions for seats of automobiles. It processes sisal to form padding. The sisal loom in this case is one machine in a series on a production line. It compresses sisal, which comes to it from another machine, into a strip of matting. After passing through the needle board of the loom, where it is compressed, the matting leaves the loom by passing between two rollers, one of which has teeth and is power driven, so as to pull the matting through. (These were the rollers involved in the accident.) The matting then passes into another machine for further processing.
When the loom is started up and a new strip of matting passes through it, and through the rollers, the end of the strip must be lifted manually and placed in the next machine in the line. Two persons, called head men, normally perform this task. Plaintiff was a head man and was apparently the only head man present at the time of the accident. He and his coworkers had just been on a break, and the loom had been stopped, with no matting in it. Just before the accident the loom had been started, but no sisal was moving through it as yet.
The two rollers have horizontal axes. The lower roller is power driven; is 8 inches in diameter; and is covered with teeth about a quarter inch in length. The upper roller is not power driven; is 6 inches in diameter; and is smooth. It is held down against the tooth roller by heavy springs at each end of its axis. When the loom is running, the tooth roller revolves with its upper side moving outward from the loom, making one revolution in six seconds. The smooth roller revolves with its lower side moving outward. There is a "nip point" where the two rollers approach each other as they revolve. The nip point is inward, toward the needle board. The teeth on the lower roller are sharp and draw the matting out from the loom.
There is conflict in the evidence as to the activity of Dazenko just before the accident and as to the manner his right hand was drawn between the rollers. It can be inferred, however, that he was standing between the loom and the next machine, in the position a head man would probably stand if he were to act alone and catch the matting to lift it over to the next machine. He was facing the rollers, which were opposite his midsection. He looked over the portion of the loom above the rollers to see when the sisal would start to come through. His shirt was caught by the teeth of the lower roller. He used his hands in an effort to free himself, and ...