APPEAL from the Circuit Court of Peoria County; the Hon.
RICHARD EAGLETON, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 23, 1974.
This products-liability action was brought by plaintiff-appellant, Jerry Pyatt, in the circuit court of Peoria County against defendant-appellee, Engel Equipment, Inc. In the complaint based upon a theory of strict liability in tort, plaintiff seeks damages for personal injuries against the manufacturer of a sheet metal press brake. The trial court entered judgment upon a jury verdict in favor of defendant. Plaintiff appeals.
The machine in question is a Bendal 1010 BA press brake manufactured by defendant and is used to bend sheet metal for use in the heating and cooling industry. It consists of two dies, one attached to a movable ram which comes together with a fixed die. The widest opening between the two dies is 2 inches and the machine was not equipped with a guard or a safety device around the working surface.
Plaintiff is an apprentice sheet metal worker employed by Meister Bros. in Peoria, Illinois. The incident giving rise to this action occurred 2 days after he commenced employment. Having no prior experience in the use of the machine, plaintiff was instructed by his foreman on the operation of the machine. Plaintiff testified that after a demonstration of the machine he was aware that injury would occur if his hand were placed in the area of the ram and die. Immediately following this consultation plaintiff began operating the machine and while holding the metal being bent by the press brake, four of the fingers on his left hand were severed when they were inserted between the ram and die.
According to the complaint, the machine was defectively designed and unreasonably dangerous for the purpose and use intended in that it was not equipped with guards or other safety devices nor was there a visible written warning of danger for operators of the machine. Defendant filed an answer and an affirmative defense of assumption of risk.
During the trial, the court refused to allow plaintiff to question witnesses about the Health and Safety Rules of the Industrial Commission of the State of Illinois. The first reference to the Health and Safety Rules was made during the examination of Walter Alan Reed, design engineer for the defendant, called as an adverse witness under section 60. After describing the nature and operation of the brake, the witness indicated the machine as so designed was similar to that of competitive manufacturers, which like the machine in question did not include any particular safety devices in the working area where the dies came together. The witness was then asked whether he was familiar with the Health and Safety Rules of the State of Illinois and although he answered "No", an objection to the question was interposed and sustained after which both the question and answer were stricken. Later plaintiff sought to question his own expert witness as to his familiarity with the Health and Safety Rules. The court refused to allow any reference to or identification of the Health and Safety Rules as such, although the expert was allowed to testify regarding his knowledge of the substance of the rules without their identification. It is plaintiff's contention that these rules are admissible into evidence for the limited purpose of establishing some evidence of standards of machine design. Defendant, on the other hand, in arguing the rules are not admissible, maintains that the Health and Safety Rules promulgated by the Industrial Commission impose standards for employers within the State of Illinois and apply only to an employer-employee relationship, but they do not establish rules for out-of-state manufacturers of the machines. The same reasoning was adopted by the trial court. It is our opinion the court erred in its refusal to allow introduction of the rules into evidence.
With respect to problems involving the Health and Safety Rules, the parties have directed our attention to three cases. The first of these cases in point of time, relied upon by the appellee, is Jones v. S.S. and E. Corp., 112 Ill. App.2d 79, 250 N.E.2d 829. In Jones the court held improper an instruction given in a Structural Work Act case which in effect directed the jury to consider a violation of the Health and Safety Rules as a violation of the Structural Work Act. Although the court believed the instruction was erroneous and prejudicial, it did not hold the rules were inadmissible.
In Avery v. Moews Seed Corn Co., 131 Ill. App.2d 842, 268 N.E.2d 561, the second case cited by the parties, the court found no error where the Health and Safety Rules were read into evidence to establish a standard of care where an employer-employee relationship did not exist. The Health and Safety Rules were deemed relevant and admissible where the plaintiff was an independent truck driver who was injured when he delivered corn to defendant's plant.
The third case, cited by the appellant, Clements v. Schless Construction Co., Inc., 8 Ill. App.3d 291, 290 N.E.2d 21, adopts the holding in the Avery case and holds the Health and Safety Rules admissible as standards in determining liability under the Structural Work Act. In so doing the court believed its rule harmonious with the earlier Jones case where the court abstained from considering such questions, believing it not sufficiently discussed in the briefs. Again in Clements as in Avery, introduction of the Health and Safety Rules was permitted even though the relationship of employer-employee did not exist.
• 1 An expert witness testifying in behalf of the plaintiff was finally permitted to describe the standards set forth in the Health and Safety Rules but was prohibited from identifying the source of such standards or indicating they had been adopted by the Industrial Commission pursuant to the authorization of the Health and Safety Act (Ill. Rev. Stat. 1971, ch. 48, par. 137.1 et seq.). The appellee suggests that whatever prejudice might have ensued because of any error in the admission of the Health and Safety Rules was cured by this course of action. We do not share this view, since it would be of substantial relevance in evaluating a standard to know the source of the standard as distinguished from the opinion of a single expert. That the expert did describe the standard without identification of its source without claim of error would seem to establish the relevancy of the standards as described in the rules as applied to the design of the machine. If the machine was in accord with standards disclosed by the Health and Safety Rules, no doubt the appellee would be contending the rules and the authority under which they were propounded would be admissible to show the propriety of its machinery and indeed we believe the rules should be admitted for such purpose. Such rules do not and ought not have the force of a statute and we believe the standards contained in such rules may be the subject of dispute or refutation by either party. From what we have said, it also follows that we believe exclusion of the Health and Safety Rules as such was prejudicial and requires a new trial.
This brings us to the assignments of error relating to rulings by the trial court on instructions. The trial court gave a burden of proof instruction in the language of Suvada which of course referred to an "unreasonably dangerous" condition. Each party tendered an instruction purporting to define this phrase and each party objected to the other's instruction. The court was unwilling to accept either proffered instruction and finally gave an instruction of its own. This instruction which is identified as a court's instruction provides:
"When I use the term `unreasonably dangerous' in these instructions, I mean that the product at the time it left the manufacturer's control must have been dangerous to the extent beyond that which would be contemplated by the ordinary user of it, with ordinary knowledge common to the community in which it was to be used. The law does not say what conditions are unreasonably dangerous. That is for you to decide."
The defendant's instruction which the court declined to give was similar to the one finally given. The defendant's instruction did not include the last two sentences of the court's instruction which appear to have been taken from the ...