APPEAL from the Appellate Court for the Fifth District; heard
in that court on appeal from the circuit court of Madison County;
the Hon. MICHAEL KINNEY, Judge, presiding.
MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 25, 1970.
James Williams was injured while operating a trenching machine manufactured by defendant, Brown Manufacturing Company, Inc. Williams brought an action against defendant under a theory of strict product liability in tort, essentially alleging an unreasonably dangerous design, and was awarded damages in the amount of $40,000 by a Madison County circuit court jury. The judgment was affirmed by the Appellate Court for the Fifth Judicial District (93 Ill. App.2d 334), and we granted leave to appeal.
While numerous questions are raised here, most were adequately treated by the appellate court. Those upon which we disagree or deem an expression of opinion by this court desirable are:
1. The nature of the conduct by a plaintiff which will bar recovery in an action based upon strict liability in tort in this State, and the related issue: upon whom rests the burden of pleading and proving the absence or existence of that conduct?
2. When does the statute of limitations commence to run in such an action predicated upon defective product design?
3. Should all members of the Appellate Court for the Fifth Judicial District have disqualified themselves in the initial review of this case?
A detailed factual statement is contained in the opinion of the appellate court. (93 Ill. App.2d at 349-357.) An abbreviated statement, therefore, is sufficient to place the first of the above questions in context for the purpose of this opinion.
Plaintiff's recovery was based upon a count alleging that while he was operating the trencher, "the machine bucked and unexpectedly jumped a number of feet to the rear, knocking the plaintiff to the ground and running over him, thereby causing serious and permanent injuries * * *." This count enumerated several respects in which the condition of the trencher was "unreasonably dangerous", alleged that the condition existed when the trencher left defendant's control, and claimed that plaintiff's injuries were a direct and proximate result of the condition. There was no allegation of plaintiff's exercise of due care or his freedom from contributory negligence. Defendant's answer included two affirmative defenses: the action was barred by the statute of limitations, and plaintiff had "assumed all risk in relation to use and operation" of the trencher. Both defenses were stricken by the trial court on plaintiff's motion because of the court's opinion that the proof was insufficient to support either defense.
Defendant contends that the trial court erred in denying its successive motions to dismiss, for directed verdict, and for post-trial relief, all of which were based on the ground that the plaintiff had failed to state or prove a cause of action because of his failure to allege or prove that he was in the exercise of due care for his own safety. Plaintiff argues that in a strict liability case, contributory negligence, or the failure to exercise due care, is an affirmative defense.
The evidence indicated that, while plaintiff was operating the machine from a position between the handlebars at its rear, the digging teeth of the trencher momentarily caught on an underground pipe; when the teeth suddenly slipped off the pipe, the machine lurched backward. Plaintiff maintained that the power unit should have been equipped with some safety device, such as a "throw out clutch", to prevent such a build-up of force. Alternatively, he argued that the drive-belt should have been easily adjustable to a tension which would allow satisfactory digging normally, but would allow slippage when an obstruction was encountered. Plaintiff was allowed, at the close of his case, to allege as a further dangerous condition that the machine exhibited no warning that it should not be operated from behind and between the handlebars. Defendant maintained that users normally operated the unit from the side, gripping the handlebars from behind only to guide the machine to the digging site. An instruction booklet had accompanied the machine, and, though it did not advise as to the proper position for an operator, it did state in the two pages concerned with operation and maintenance:
"ADJUSTMENTS AND MAINTENANCE
The engine is bolted stationary to the machine, and when the drive belts become loose enough to slip, adjust them by the threaded shaft on the right hand clutch lever. Caution do not adjust the belts too tight; they must be able to slip under shock load.
Service and Maintenance Tips on Bus Brown Trenchers. Short Belt Life: Belts that are adjusted too tight may turn sideways, also not be able to slip under shock load.
Shearing Woodruff Keys * * * Possible Cause and Remedy.
Generally the drive belts are adjusted too tight, especially on the model 468R, the drive belts must be adjusted so they do not slip under normal trenching, but should be loose enough to slip when some object gets caught in the digging chain, if the ...