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Matthews v. Stewart Warner Corp.

JUNE 10, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. JAMES A. GEROULIS, Judge, presiding.


Plaintiff was allegedly injured when a "zerk" (a steel lubrication fitting) allegedly chipped while plaintiff was inserting the zerk into a universal joint by means of an air press. Plaintiff brought suit against defendant corporation, the alleged manufacturer of the zerk, grounding her action on a products liability theory. After a trial before a jury, a verdict of $85,000 was entered on plaintiff's behalf. Defendant's appeal followed.

Before going further, some description of a zerk is necessary. A zerk is a fitting, made out of one piece of metal, the lower half looking somewhat like a screw, the upper half like a little ball; the upper half is separated from the lower half by a circular "collar" or "shoulder." There is a small hole or channel extending through the zerk from top to bottom, whose purpose is to provide an opening through which grease or oil can be forced — by means of a grease gun — into whatever piece of equipment the zerk has been inserted in a given instance; in the matter at hand, for example, a universal joint. Inside the zerk, a spring holds a stopper against the hole, and a grease gun is able to push the stopper aside to insert a lubricant into the zerk. When the stopper moves back into place, the lubricant is prevented from escaping. The lubricant flows down the zerk's channel and into the piece of equipment to which it is attached. *fn1

The testimony adduced in the trial court can be summarized, in its pertinent portions, as follows. Plaintiff testified that at the time of trial she was 27 years old and, at the time of the accident, age 20; that, in June of 1964, she had begun employment in assembly line work at Wesco Automotive Parts Company in Chicago; that, during the morning hours of August 4, 1964, she was working at a machine (an air press), inserting zerks into universal joints *fn2; and that her manner of inserting zerks into universal joints was this: the universal joints were in a pan on a runner beside the machine on the right hand side, and she would pick up the universal joint with her right hand and place it in a vice-like cradle in the machine; she would then pick up a zerk with her right hand, place it straight up into a hole in the universal joint, twist the vice to close it, and press a handle on the machine, which would drive a steel press hammer onto the top of the zerk, driving the zerk into the hole in the universal joint.

Plaintiff further testified that, with respect to the circumstances surrounding the accident and injury on August 4, 1964, she placed a zerk into a universal joint — in a straight up and down position — and tightened the vice. She identified a zerk she was shown, manufactured by defendant, as similar to the zerks she had worked with at Wesco. She then hit the air press handle in order to activate the press, and the steel press hammer came down to the top of the zerk, commencing to push it into the universal joint. She then heard an unusual sound — something like a "pshh" sound — and felt a stinging sensation underneath her left eye. She looked down and saw that the top of the zerk had been broken. The universal joint was still in place, and the zerk was inserted in the joint up to its "collar" point, but the top portion of the zerk — though not the entire top — was broken off. She wiped her eye, and, after so doing, noticed that her vision was becoming somewhat blurred. She summoned her foreman, who sent her to a clinic to be examined. The universal joint with the broken zerk was still in the vice when she left the factory; she never again returned to Wesco.

Subsequently, plaintiff's left eye was enucleated, and medical testimony adduced at trial was to the effect that the condition of plaintiff's eye was the result of, and definitely related to, a piece of the zerk flying into her eye.

Philip Lapine, a purchasing agent for plaintiff's employer at the time of the accident and at the time of trial, testified, in part, that from 1961 through 1964 his company purchased all its zerks from defendant, Stewart Warner; that his company used what was called a "mighty mite" press to drive zerks into the particular size universal joints involved herein; that the press sits on a bench, is 12 to 18 inches wide and 2 1/2 to 3 feet in height, and has a "stroke" anywhere from 6 to 8 inches long; that the mighty mite press was an air driven press to which a ram was connected and that 120 pounds of air pressure was required to drive the drill press; and that, in 1964, air was supplied to the drill press from an air compressor *fn3.

Mr. Lapine went on to testify that his company maintained a separate area in the assembly department where Stewart Warner zerks, which were delivered in corrugated boxes, were kept and that the area was about 30 to 40 feet from the assembly lines where the zerks would be used.

Joseph Kielbasa, the supervisor of the assembly department in which plaintiff worked at the time of the accident, testified, inter alia, that in 1964 the department maintained approximately six presses of the type used to insert the size zerks in question; that he was notified about plaintiff's accident and went to the area in which she was working; that after he had discussed the accident with plaintiff, he looked at the product she was working on and saw that a piece was still intact on the fixture, but that the top of the zerk was split at an angle, not lengthwise or sideward; that less than half of the zerk top was missing; that he then gave the machine plaintiff had been working on a slight inspection, failed to find anything wrong with the machine, and, within five to ten minutes, placed another employee at work on the machine; that the other employee worked on the machine for the balance of the day; that the machine was operable and that nothing was done to the machine following the accident; that the universal joint in the machine plaintiff was operating was removed from the press and placed in the plant superintendent's office; and that, when it was so placed, it contained the zerk fitting which had broken. *fn4

Kielbasa was later recalled as a witness for plaintiff and testified, in pertinent part, that the maximum pressure output of the compressor which supplied the mighty mite presses was 100 pounds; that the maximum pressure output he, himself, had even seen on the pressure gauge was 90 pounds; that whenever the pressure fell below 75 or 80 pounds, the air control machines were shut off until the pressure built up to 90 pounds; that the problem was never over-pressure, but under-pressure; and that there was trouble with the air compressor two or three times daily.

Marvin Salzenstein, a degreed mechanical engineer specializing in machine design, air pollution, and computation, was called to testify as plaintiff's witness. He testified that he had examined the mighty mite presses at plaintiff's former employer on two occasions in May of 1971; that is, some five months prior to trial in this cause and nearly seven years after plaintiff's accident. When asked to describe the mighty mite press, he responded that it was a small table-mounted press operated by compressurized air, which would enter at the top and drive a piston downward. The piston was attached to a ram at the bottom, which would drive whatever one was pressing into the base. There were two handle controls on the press, so that an operator would have to use both hands on the controls to press the "two buttons" which would bring the ram downward to do the pressing. When the controls were released, the press would come back up again.

The witness was then asked whether he was familiar with the mighty mite press as it existed in 1964, to which he responded that he was not. Salzenstein, continuing, testified that assuming 100 pounds of air pressure per square inch was entering the machine, he could determine the maximum amount of force the ram could exert *fn5. Salzenstein stated that the matters he would consider in making his determination would be the air pressure entering the mighty mite press, the sizes of the machine's piston and ram, and the narrowest cross-section of the zerk, but that he would not have to know the length over which the ram would descend in order to determine the force it would exert. The witness was then called upon to examine a zerk, manufactured by defendant, similar to that used by plaintiff on the day of the accident. He testified that a zerk of that nature should, if properly manufactured, have a tensile strength of 80,000 to 100,000 pounds per square inch; that if one were to stretch the material to a point approaching its tensile strength, the material would finally fail as it reached its tensile strength; and that he had been able to determine the maximum amount of force that the ram of a mighty mite press could exert on the type of zerk he had been shown in the ram's attempt to push the zerk into a universal joint.

Salzenstein then explained the manner in which he would calculate the amount of stress the zerk could bear, utilizing the various factors he considered necessary to make his determination, as set out above. A lengthy hypothetical question, propounded by plaintiff's counsel, was then put to the witness. After defense counsel objected to the hypothetical question, the following colloquy took place:

"THE COURT: State any additions or deletions from that hypothetical question. That you —

MR. BONOTTO [defense counsel]: I do not think basically, that the man is qualified to express an opinion on this product. I do not think that his testimony today went out [sic] to that plant some time in May of this year and the facts that counsel has given him are sufficient for him to express an opinion or what might have occurred in August of 1964.

THE COURT: Any addition or deletion from the hypothetical question?

MR. BONOTTO: None for the moment.

THE COURT: Objection overruled. He may answer.

THE WITNESS [Marvin Salzenstein]: Yes, I do have an opinion.

BY MR. ROSEN [sic] (counsel for plaintiff): What is that opinion?

Q. In other words, if this zerk were made pursuant to proper specifics regardless of what happened, it couldn't break unless you put at least the amount of force ...

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