APPEAL from the Circuit Court of Coles County; the Hon.
WILLIAM J. SUNDERMAN, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 4, 1974.
Plaintiff, as administrator, sued for wrongful death. The trial court directed a verdict for defendant upon a count alleging product or manufacturer's liability. This appeal follows a finding as provided in Supreme Court Rule 304.
Plaintiff's decedent fell from the operating station of a large earth-moving vehicle known as a payscraper. The evidence is that the vehicle weighed approximately 13 tons, and that the driver's station was about 8 feet above ground level. The driving platform was substantially the width of a single seat. The allegations specified that the machine was unreasonably dangerous in that the driver's seat latching device was inadequate and unsuited for its intended purpose of holding the driver's seat in a stable position; that the operator's station was not properly and safely designed to prevent the operator from falling from the machine, and that the machine was not equipped with adequate instructions and warnings that the driver should not stand up while operating the machine. It is alleged that such defects were the proximate cause of death when decedent was thrown or fell from the machine on to the ground and was run over by it.
• 1 A directed verdict requires that the trial court find that the evidence, in its aspects most favorable to the plaintiff, so overwhelmingly favors defendant that no contrary verdict could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.
On the morning of October 30, 1968, decedent was operating the payscraper to move dirt from the east to the west end of the job. After emptying a load he would return eastward along a recently completed concrete highway to the starting point for another cycle of moving dirt from a nearby ditch. The evidence conflicts as to whether several windows of dirt, some 9 inches high, had been placed across the highway to slow traffic and that such were located southwest of where decedent was found.
At about 11 A.M., decedent was found face down on the pavement with his head crushed. The machine continued under its own power some 150 feet until it had veered into a bank of earth and halted with the engine running. There was blood on the inside of the right rear wheel. Decedent's head was the only portion of his body that was injured. The body was found in the right hand lane of the paved road with the head approximately 3 feet from the edge of the pavement and at an angle to the southwest. The coroner testified to his conclusion that decedent's head was squeezed between the inside of the tire and the body of the machine.
Decedent had operated the machine throughout the morning until his death at about 11 A.M. At times he had been observed operating the machine while standing. There is testimony that standing is a dangerous practice and that defendant had been warned about it by his employer. There is also testimony concerning the practice of the operators of such machines to stand while driving because of perspiration and for respite from the jolting.
Decedent was observed some 30 to 35 seconds before his death, seated and driving the machine eastward along the highway at some 8 to 10 miles per hour. There is testimony that empty machines travelling upon a highway might bounce a great deal.
All the evidence on the issue of unreasonably dangerous condition concerns the driver's compartment on the payscraper. The suspension system of the driver's seat was designed for a farm tractor and patented by defendant's engineers. The component parts of the seat are manufactured by the Bostrom Company, but sold by defendant without change as official International Harvester parts to and through defendant's dealers. The seat was designed to enable an operator of farm equipment to adjust the height of the seat rearward or frontward relative to a steering wheel or a farm tractor. The seat is adjustable to five positions, encompassing a total movement of 5 inches front to back and 3 inches upward from the lowest and most forward position to the highest and most rearward position. Such adjustability is not necessary on the payscraper. The seat was secured in one of the five positions by means of two latches, or in engineering terms, pawls. The lower pawl, when locked in position, prevented the seat from moving to the rearward positions. The seat was spring mounted, so that if the lower pawl was disengaged or broken, the seat would spring back from the position to which it had been adjusted to the most rearward position. Thus, if the lower pawl was disengaged or broken, while the seat was in its forwardmost position, the seat would spring back 5 inches and up 3 inches; if the seat were already adjusted to its rearwardmost position, a broken pawl would result in no change of position of the seat. The driver's weight, however, is sufficient to depress the springs, so that if the lower latch or pawl were broken, the seat would not come up if the driver was sitting quietly in the vehicle at rest. It was customary to adjust the seat to be in the lowest position unless one was extremely tall, in which case the seat might be adjusted to the second lowest position. The seat was also designed to tilt forward.
There is expert testimony to the effect that the seat was defectively designed, both because of the dual cam seat latching arrangement and because the light spring clip intended to prevent the seat from tilting forward was inadequate for its purpose since a sudden movement from breakage of either cam would throw the seat back and allow it to tilt forward.
Mechanical tests show that the metal in the pawl was porous and without sufficient tensile strength to sustain its potential load. However, if the vehicle were moving on a very smooth pavement, with constant speed, and the driver sitting quietly, there are few possibilities that the spring clip itself, rather than the pawl, could come loose. If one were sitting on the machine, and the pawl broke, the seat would raise and go to the rear whenever the driver stood up, and if the driver then attempted to sit back down in a normal position, the seat would be too far to rear for operation. Pieces of the broken lower pawl of the seat on decedent's payscraper were found on the floor of the payscraper while it was still running shortly after decedent's death. When a co-worker sat on the seat of the payscraper in an attempt to drive it, the seat sank down about four inches. When the machine was then operated, the seat "bounced a little bit but that is all." The break in the latch was the sort that could be caused by a sudden impact not incident to movement down a smooth roadway with no shocks or fractures involved. The broken latch was one manufactured for defendant, and installed on the decedent's machinery 13 days prior to the incident to replace a previously broken lower seat latch. The broken latch found at the time of the incident had not been changed in any way since defendant's service mechanic installed it on decedent's payscraper on October 17, 1968. The seat on the other payscraper on the project had been wired down; the seat on decedent's payscraper was not wired down.
On delivery, the machine in question was not equipped with safety belts, guard rails, or any other lateral protection device to prevent the operator from falling off the machine other than the arms of the seat itself. There is expert testimony to the effect that the operator's area was not properly designed because there was nothing to prevent the operator from falling. This was described as the major hazard to the operator.
Also, there is expert testimony to the effect that the danger of operating the machine in a standing position should be pointed out to the operators in a printed operator's guide, and that decals in the operator's area should warn the operator of the use of various safety devices, and should also warn the operator that an operator's guide ...