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Noncek v. Ram Tool Corp.

AUGUST 21, 1970.

EDWIN T. NONCEK, ET AL., PLAINTIFFS-APPELLEES,

v.

RAM TOOL CORPORATION, AN ILLINOIS CORPORATION, DEFENDANT, THIRD-PARTY PLAINTIFF-APPELLANT,

v.

CYCLONE BLOW PIPE COMPANY, A CORPORATION, A/K/A U.S. BLOW PIPE AND DUST COLLECTING CO., THIRD-PARTY DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. IRVING LANDESMAN, Judge, presiding. Judgment affirmed.

STOUDER, J.

Rehearing denied November 6, 1970.

Plaintiff, Appellee, Edwin Noncek, commenced this action in the Circuit Court of Cook County seeking damages for personal injury against Ram Tool Corporation, Defendant, Appellant. Ram Tool Corporation filed a third-party action seeking indemnity from Cyclone Blow Pipe Company, third-party Defendant, Appellee, the latter company being the plaintiff's employer. The issues were heard by a jury, and at the close of all the evidence, a verdict was directed against Ram Tool and in favor of Cyclone Blow Pipe Company on the third-party action. The jury returned a verdict in the amount of $107,840 in favor of plaintiff Noncek and against defendant Ram Tool Corp. Post-trial motions were denied and Ram Tool has appealed both from the adverse ruling on the motion for directed verdict and from the verdict against it.

On Saturday, August 1, 1964, the plaintiff a sheet metal worker, was sent by his employer, Cyclone Blow Pipe Company, to work at the Sunbeam plant in Chicago. He had worked there many times before, the last time being the preceding Saturday. The job to be done on the day in question was an installation on the exhaust hood at an open plating tank. The exhaust hood was part of a ventilating system designed to carry away the harmful fumes from the vat of copper cyanide. The plating tank was an open tank seventy to ninety feet long, four feet wide and four feet deep. A system of power rails, bars, and posts was attached to the plating tank, enabling racks containing objects to be plated to be lowered into the plating solution so that electroplating could take place. Because of the superstructure, necessary to raise and lower the racks, located above the tank, the hoods could not be located there but, instead, were located inside of the tank just above the surface of the liquid and the fumes were vented through the floor. The job of plaintiff was to install certain prefabricated hinged sections designed to improve the draw of the hoods, such sections being specially designed to avoid contact with the power rails and other structures.

On the day in question, plaintiff started work at the Sunbeam plant at about 7:30 a.m. After working at other jobs during the morning, plaintiff together with a co-worker, Oscar Lund, went to the plating room and began work installing the sections referred to. The work consisted of making a dent or dimple with a punch to act as a guide for the drill, then drilling a hold with an electric drill and finally attaching the section with a self-threading metal screw. The day was humid, temperature in the 90's, and although the electroplating tank was not in operation, the solution was warm and emitting fumes. Plaintiff had been using a quarter-inch electric drill belonging to a Don Kirksler. By four o'clock in the afternoon, he had completed approximately one hundred holes and decided to change drills because the one he was using was hot and the bit was slipping. According to his testimony, he took a one-half inch Ram electric drill from an unopened carton in his tool box, the tools having been supplied by his employer. In doing the work, plaintiff knelt on one knee on a bar running along the inside of the tank. According to plaintiff, after connecting the Ram drill with an extension cord and as he was about to use the Ram drill for the first time, he depressed the trigger, received a shock and both he and the drill fell into the plating tank. The plaintiff was helped out of the tank by Love, a Sunbeam employee who was standing near the tank. Love assisted plaintiff to a nearby emergency shower where the cyanide solution was washed off. Love also pulled the drill out of the plating tank and left it lying on the floor. After the shower, plaintiff was taken to the hospital. As a result of emersion in the copper cyanide solution, plaintiff sustained chemical burns to the right side of his face resulting in total loss of sight in his right eye.

In three counts plaintiff sought recovery on the theory of implied warranty, negligence and strict liability.

In seeking to reverse the judgment entered on the verdict, defendant first argues that it was prejudicial error to admit and refuse to strike speculative and conjectural opinion evidence as to the cause of the shock. Since one of the principal issues was the cause of the shock from the drill, a cause not easily ascertainable, each party presented and devoted a considerable part of the hearing to opinion evidence. Salzenstein, a laboratory testing engineer and Lewis, a university professor, testified for plaintiff. Flood, a laboratory testing engineer and Schiffer, an executive of Ram Tool, testified for defendant.

In arguing that the opinion evidence of plaintiff's experts was incompetent and, hence, should not have been admitted, plaintiff insists first that the drill which after examination formed the basis of the expert opinions, was not in the same condition as of the time of the incident and second, that the opinions were based on facts not in evidence.

Within five to eight minutes after plaintiff and the drill had fallen into the plating tank and after plaintiff had been helped therefrom, a Sunbeam electrician preparing to leave for the day, heard that a person had fallen into the plating tank and that an electric drill needed checking. He came to the area and found a drill lying on the floor near the tank. After checking the drill with an ohmmeter, he concluded that it was shorted. He then plugged the drill in, pressed the trigger and a "pftt" resulted. He then left the drill lying on the floor near the tank. The drill was then picked up by Lund, the co-worker, and including Lund, seven persons testified to their possession of the drill in a connected chain from that date until it was delivered to Salzenstein approximately thirty days later.

Salzenstein testified at length. He described his examination of the drill, taking the handle apart and observing the inside visually and in addition, various parts microscopically. He observed evidence of two shorts, one on the output side of the switch and the other on the input side of the switch. The wire from the output side was multistranded and he observed one strand of the wire which was not under the screw or within the insulated part of the wire and which he hypothesized short circuited through the handle, such condition being causally related to the shock sustained by plaintiff. He also hypothesized that the other short circuit was caused when the Sunbeam maintenance worker pressed the trigger on the drill after it was removed from the plating tank.

Lewis, who examined the drill a few weeks before trial, testified to the same causal relationship between the condition of the drill and the electric shock.

Schiffer, the Ram Tool executive, described and demonstrated the electric drill circuitry and the testing methods employed by defendant.

Flood, defendant's expert, described experiments which he had conducted with other Ram drills, including emersing the same in the copper cyanide tank at Sunbeam under different conditions. He hypothesized that the short circuits in the drill observed by Salzenstein occurred after the drill had been dropped into the solution and, therefore, the shock could not have been the result of any defect in the drill.

Defendants insist that the drill was not in the same condition when examined by the experts as at the time of occurrence and, therefore, opinions based thereon are incompetent under the authority of Jines v. The Greyhound Corp., 33 Ill.2d 83, 210 N.E.2d 562, LaSalle Nat. Bank v. Feldman, 78 Ill. App.2d 363, 223 N.E.2d 180 and Paul Harris Furniture Co. v. Morse, 10 Ill.2d 28, 139 N.E.2d 275. The foregoing cases illustrate factual situations in which the lack of proper foundation or connection between facts involved warranted the conclusion that the evidence was improperly admitted. The facts ...


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