Appeal from the Circuit Court of Peoria County; the Hon.
CHARLES M. WILSON, Judge, presiding. Affirmed in part and
reversed in part, with judgment here.
Martha Gunn filed this suit claiming damages for personal injuries she incurred while using a washing machine in a "Laundromat" owned and operated by the defendant, Klean-Rite, Inc. She alleged the machine she used was manufactured by the other defendant, Borg Warner Corporation.
The type of machine involved operates in cycles controlled by a timer. When the starting lever is pushed, the timer causes water to flow into the machine and there follows a ten-minute period of agitation by an oscillator. Then there is a minute pause. Thereafter the wash water is drained out and clean water rinses the clothes for about eight minutes. There follows another one-minute pause, then the agitator goes into a rapid spin to extract the rinse water. When the cycle is complete the machine stops automatically. There is no switch to stop it otherwise. There is a coin slot and the cost of one complete operation is 20¢ . There were also three lights on the machine, one for each phase of the cycle.
The plaintiff testified that, on the day of her injury, she had loaded the machine and started it, after putting two dimes in the slot. Then she went outdoors for awhile, it being quite warm inside. Upon returning she observed the machine was not in operation and the lights were out. She read a sign on the wall, repeated on the machine which read: "If lights go out and machine stops during cycle, open door, rebalance load (distribute clothes evenly around agitator) and push down red button at top left side of machine."
After reading the instructions she looked for someone to help her, but there was no employee on duty. She lifted the lid and began to redistribute the clothes as directed when the machine went into its spin phase in reverse, catching her hand and causing injury to her hand, arm and shoulder.
The president of the local company testified the Norge machines were acquired secondhand from a New York company. At the time of this incident they had been in use about four years which is considered their normal useful life. They were in the process of being junked and replaced by another make.
At the time, there were eight new machines in the place and the witness thought from the plaintiff's description of the location where she was injured, that she had been at one of these new machines, not a Norge. The remaining Norge machines were junked in some period of weeks, and none was available for inspection or production at the trial.
The complaint in this case consisted of five counts. The first three were against Borg Warner and the next two against the local company. Count I charged that Borg Warner was negligent in the design and manufacture of the washing machines referring particularly to the lack of adequate guards and safety devices, meaning there was no switch to stop the machine and no automatic cutoff when the cover was open. Also it charged defendant failed to make reasonable inspections and failed to warn plaintiff of the defects and hazards.
Count II was based on warranty, charging defendant had warranted the machines were of merchantable quality and fit for their intended purpose, but they were not. Reference was again made to the lack of safety devices.
Count III was a products, strict liability charge, based on an unreasonably dangerous condition when originally sold by defendant, again speaking of the lack of adequate safety devices.
Count IV charged that Klean-Rite was negligent in failing to maintain the equipment properly and in failing to install safe machines, failure to make reasonable inspections, failure to warn and failure to have any attendant on duty, and allowing the machines to be in a state of disrepair.
Count V was based on warranty. (This summary of the complaint is greatly condensed.)
The jury found in favor of Borg Warner but for plaintiff against Klean-Rite, and fixed her damages at $4,500. The court allowed the Klean-Rite motion for judgment notwithstanding, and denied plaintiff's motion for a new trial as to Borg Warner.
During the trial, at the conference on instructions, the court refused all warranty instructions, also strict liability, and the charge of failure to use ordinary care. Plaintiff contends these rulings require ...