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Bittner v. Wheel Horse Products

APRIL 17, 1975.

OTTO BITTNER, PLAINTIFF-APPELLANT,

v.

WHEEL HORSE PRODUCTS, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ARCHIBALD J. CAREY, Judge, presiding.

MR. PRESIDING JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 15, 1975.

This is a products liability action arising out of an accident which occurred on January 14, 1968 in which plaintiff, Otto Bittner, lost three fingers on his right hand while attempting to dislodge snow with his hand from the clogged snow discharge chute of a snowblower. Plaintiff brought this action against defendant Wheel Horse Products, Inc., the manufacturer of the snowblower, and alleged that defendant defectively designed the clutch of said machine.

The jury entered a verdict for the defendant and plaintiff now appeals.

Plaintiff's contentions on appeal are as follows: (1) the trial court erred in refusing to permit plaintiff to start and run the snowblower in the presence of the jury; (2) that a special interrogatory propounded by defendant was improperly submitted to the jury and that the answer thereto requires that this cause be remanded for a new trial; (3) that the trial court erred in permitting the expert witness of the defendant to testify; and (4) that the jury should not have been instructed on the affirmative defense of assumption of risk and that said instructions improperly stated the law.

We affirm.

The snowblower in question has a series of blades in front, the rotor, which feeds snow to a metal wheel consisting of four blades, the impeller. The impeller then throws the snow out through the discharge chute. On the side of the snowblower there is a lever called the rotor clutch which is designed to engage or disengage the rotor and impeller from the engine depending upon whether the clutch lever is placed in the "run" or the "stop" position. The "run" position is located at the uppermost point and the "stop" position at the lowest point. Just below the stop position is a metal ledge which extends at a right angle to the lever and out from the machine.

Plaintiff's testimony revealed that on the day of the accident, it had snowed three or four inches and that plaintiff was using the snowblower to clear this snow from the premises at 203 N. Kenilworth in Oak Park where he both lived and worked. In the process of clearing the snow, the discharge chute on the snowblower became clogged with snow to the point that the machine was inoperable. According to the testimony of the plaintiff, before attempting to remove the snow, he placed the clutch lever in the stop position, but did not turn the engine off. Plaintiff then took a stick to clear the accumulated snow and ice from the discharge chute and the ice and snow which he could not remove with the stick he tried to remove with his hand. While plaintiff was removing the snow in this fashion, his fingers were severed by the blades of the impeller.

Safety rules were printed on the machine itself and were further contained in the owner's manual. The following warning was printed on the panel of the machine between the operating handles on the back of the machine:

"SAFETY FIRST

STOP ENGINE BEFORE CLEANING DISCHARGE, REMOVING OBSTACLES, MAKING ADJUSTMENTS, OR WHEN LEAVING OPERATING POSITION [.]

KEEP HANDS AND FEET AWAY FROM INTAKE OR DISCHARGE.

* * * READ SAFETY INSTR. AND OWNER'S MANUAL."

The owner's manual warned the operator to take the following precautions:

"To avoid accidents, shut off engine before adding gas, oil, before making adjustments, or inspections of any kind.

CAUTION: Always STOP ENGINE and disengage rotor clutch before attempting to remove obstructions from the chute or rotor.

If chute should become plugged with snow DO NOT stick your hand in chute and attempt to clean it out. Disengage rotor clutch and shut off engine. The chute should be ...


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