APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
H. FITZGERALD, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 10, 1975.
On June 18, 1966, Vincent Wenzell (plaintiff), a minor then 4 years old, was injured by a gasoline powered lawn mower, designed, manufactured and distributed by MTD Products, Inc. (defendant). Plaintiff's second amended complaint was based upon strict tort liability, resulting from allegedly defective design and construction of the machine. After a jury trial, a verdict was rendered in favor of defendant. Usual post-trial motions were denied. Plaintiff appeals.
The lawn mower was owned by the family of Randy Riley who was then 7 years of age. The incident occurred on the family property. A number of boys were present. Two of them testified as part of plaintiff's case. They were: Douglas Gale, then 10 years old, and James Ostergrand, then 16. During the early part of the afternoon, Randy Riley, Douglas Gale and James Ostergrand had taken turns in driving the mower. The machine was a type upon which the rider sat and manipulated the controls. The boys had cut the grass in the Riley front-yard and then the mower was moved to the backyard.
Plaintiff entered the backyard and began playing at the swing which was off in one corner. The remaining boys had been riding the lawn mower in the backyard for about 10 minutes before plaintiff arrived. After about 20 minutes, Douglas Gale had completed his turn to operate the machine. He put the gear lever in neutral position and got down from the seat. Randy Riley then got up on the machine. He put the mechanism in reverse gear to avoid a tree a short distance in front of it. About that time, plaintiff left the swing and ran over to the group to speak to one of the boys. At that moment, the mower moved back and in about 2 feet it came in contact with plaintiff.
Douglas Gale testified that the machine "jerked back". However, in his discovery deposition, he had testified that the mower came "back smoothly" and that it would not jerk back when it was put in reverse. The trial took place in January of 1973, about 6 1/2 years after the occurrence. The discovery deposition was taken in May of 1968. Douglas Gale also testified at trial that the mower was moving when it came in contact with plaintiff. Plaintiff fell on his back and his left foot fell under the left side of the mower. The witness stated in his deposition that the rear portion of the mower came in contact with plaintiff but he did not remember whether it was the left or the right foot. His testimony was that plaintiff's foot came in contact "with the far left side of the mower."
The witness further testified at trial that Randy Riley was looking straight ahead and did not look around behind him when he put the machine in reverse gear. He also testified that plaintiff did not try to get out of the way. In his deposition, he stated that, as the mower was reversing, plaintiff tried to get out of the way but, "it didn't work too good." The witness testified at trial that after the occurrence James Ostergrand stopped the machine and knocked the driver off. The witness also testified that he had seen Randy Riley operating the mower previously but had never observed him changing the direction of the machine. He did not recall his answer in the discovery deposition that he had seen Randy Riley change the direction of the machine and that the boy could use the gearshift "real good."
The other occurrence witness, James Ostergrand, testified that Randy Riley had driven the machine twice around the backyard during the time that plaintiff was playing on the swing. Douglas Gale then took a turn at driving the machine around the yard. During this time the grass was being cut by the mower. Douglas Gale then stopped the machine and the witness took a turn. He operated the mower without reversing it and during that time it was cutting grass. He then stopped the machine, shifted the gears to neutral position and dismounted. The engine stopped because of a clogging of grass. Randy Riley then got on for his turn at driving and Douglas Gale started the mower for him. Plaintiff was then getting off of the swing to approach the group. Plaintiff came up toward the group and about 2 feet behind the lawn mower just as Randy Riley started the machine. The testimony was that Randy was trying to put the machine in forward gear "and he missed it and he put it in reverse." He saw Randy Riley put the machine in reverse. The mower had backed up about 2 feet when it came in contact with plaintiff. The mower jerked backwards. It moved back fast for about a foot and one half and then slowed down. Randy Riley did not look behind him before he backed up. Plaintiff did not move from the time the lawn mower began its backward motion until the time of the contact. Plaintiff was then looking toward the lawn mower. The contact knocked him down and his foot was run over. His left leg was extended with his left foot pointing directly upward underneath the mower. Both feet were under the mower but only plaintiff's left foot was hurt.
Although mindful of the proverb that one picture is worth 10,000 words and also of the presence in this record of several photographs of the mowing machine, we shall attempt a description thereof and also a statement of how the mechanism operates. Part of this information was supplied by the testimony of four experts which will be later summarized. The machine in form is a tractor or similar to the stripped chassis of an automobile. It has two fenders or mudguards, one for each rear wheel, but none for the two front wheels. The operator sits on top of the machine toward the rear. At the front, covered by a metal hood, is a small gasoline powered motor. Tires are mounted on wheels appended to two axles. There is a type of steering wheel in front of, and readily accessible to, the driver for varying the direction of the front wheels and accordingly of the machine. Power is transmitted to the driving wheels at the rear. There is a brake on the driver's left which can tighten upon the left rear wheel for stopping, Power is transmitted from the engine to a transmission under the seat and from the transmission to the rear drive wheels by means of a chain and sprocket assembly on the bottom close to the left side.
The grass is cut by means of a large blade under the machine with its upper surface completely covered by a circular housing. This rather formidable blade is virtually as long as the entire width of the mower itself. The operator starts the engine by pulling a cord under the hood. The entire machine, independently of the blade, may then be set in motion. To do this the gearshift lever at the left of the driver must be activated by placing it from the neutral position into forward or reverse as desired. The operator then presses a clutch pedal which is on his right side. This will set the machine in motion. When the operator is ready to cut grass, he engages or lowers the blade by releasing the foot pedal, moving the engine throttle to fast position and then slowly moving a blade engagement lever on the left side until the blade is in motion. The throttle control may be set at a slower speed, as desired. To stop the motion of the blade, it is necessary to move the blade lever to the disengage position.
The transmission lever operates by moving a so-called dog gear back and forth. This gear is thus made to mesh with the gears for forward or reverse motion as desired. The machine will not move, however, by shifting the gears without also depressing the clutch lever. The gearshift is fitted with a so-called detent devise which fixes the positions of the operating lever as desired; that is, neutral, forward or reverse. The point is made in the testimony that this detent in the machine in question is covered by the gear box so that the actual engagement of the gearshift lever may not be observed by the driver. It should also be noted that the lower surface of the sprocket and chain assembly are exposed with nothing between this mechanism and the ground. For safety of the driver, the upper surface of the sprocket is completely enclosed by a cover. There is no guard at the back and bottom portions of the sprocket. The bottom of the sprocket clears the ground by approximately 2 inches. The sprocket moves clockwise in the forward motion and counterclockwise when moving in reverse.
Four expert witnesses testified. Plaintiff called Marvin Salzenstein, a qualified mechanical engineer, who specializes in machine design. He had examined and tested this mower. He stated that when he carefully moved the gearshift lever so as to make just initial contact with the reverse gear, depression of the clutch pedal did not place the machine in motion. However, the slightest additional movement of the lever would then engage the gears and the machine would reverse "rather suddenly." The witness also testified to the difference between external and internal detents on a gearshift mechanism. This testimony will be later summarized. He also pointed out the condition of the sprocket and chain assembly with reference to the presence of the guard.
Plaintiff offered in evidence a pamphlet containing safety specifications adopted by the American Standards Association for power lawn mowers. This publication provided in paragraph 2.2.11 that "all moving chains, belts, and gears shall be enclosed or adequately guarded to prevent personal injury." These standards did not cover the detent system or the dog gears. The expert criticized the lack of enclosure of the sprocket on the underside of the machine. In response to a hypothetical question, he expressed the opinion that the machine was unreasonably dangerous for its intended purpose or use. He based this opinion upon the theory that a sudden and erratic movement of the machine constituted the danger because of the possibility of a sudden application of power by engagement of gears which the operator did not intend. In the opinion of the witness this created a hazard to the operator as well as to people around him.
The witness also testified that failure of the sprocket and chain assembly to conform to the requirements of the American Standards Association, in his opinion, created an unreasonably dangerous situation as the open sprocket could catch a portion of a person's body and, if it were beneath the mower, the mechanism would tend to ride over it. In his opinion, the close proximity of the chain driven sprocket to the ground formed a dangerous "nip point" with the ground itself.
On cross-examination, the witness conceded that the written warranty and safety rules furnished by defendant with the machine were correct in classifying the mower as a piece of power equipment. He agreed that extreme caution should be exercised at all times in the operation of the machine which was not a toy. The instructions supplied by defendant state that the machine is not a toy and that it "should not be used by anyone until they fully understand the operating instructions." He personally agreed with the admonition that children or young teenagers should never be allowed to operate a power mower. The pamphlet issued by the American Standards Association provides in the appendix a warning to the same effect.
Plaintiff also called Donald Thon, defendant's safety engineer, for adverse examination. This witness did not have higher education but he was employed by defendant for 21 years. He was completely familiar with the machine in question which was manufactured by defendant between November of 1963 and May of 1964. He was also familiar with the safety specifications of the American Standards Association which were first promulgated in 1960, then updated in 1964, 1968 and 1972. He had served on a committee which participated in the formulation of all of these standards. The pamphlet offered by plaintiff was the one approved in 1960. He expressed the opinion that this specific mower complied with all of the standards and specifications contained in this pamphlet which he described as minimum standards to protect the public. In this he included the safety of the operator as well as the bystander.
The witness expressed the opinion that the machine complied with that portion of the standards which pertained to an adequate guard upon the moving chain. The witness testified that the sprocket at the rear portion of the machine, approximately 2 inches above the ground, did not create a "nip point" with the earth. He was questioned by plaintiff's counsel regarding later models of a similar machine designed and distributed by defendant commencing in 1967 or 1968. This model had a flange across the rear end. But the witness testified that his modification resulted from a difference in the type of frame. The later model was manufactured with a one-piece frame. This modification was not intended as a covering for the rear sprocket.
In the new model, the sprocket extended below the lowest part of the main frame and it cleared the ground by 2 5/8 inches. The purpose of the flange was protection of the machine itself in the event that the operator reversed and unintentionally drove over a low obstruction which could damage the mechanism beneath the frame. The installation of a plate or bar across the rear of the machine would thus interfere with clearance and would make the machine more subject to tipping over. In his opinion, the machine was reasonably safe for the purpose for which it was intended at the time it left the control of defendant. In addition, in his opinion, the sprocket and chain assembly were adequately covered and guarded in accordance with the safety specifications of the American Standards Association as promulgated in all of the years including 1972.
The third expert was George Harper, a professor of mechanical and industrial engineering at the University of Illinois, a witness for plaintiff. He expressed the opinion that the guard covering the top of the chain and sprocket assembly gave adequate protection only for the operator but not for anyone else. He defined a "nip point" as "something that catches and holds." Thus, as the rear sprocket and chain rotated in reverse, this would create a nip point against the earth which raised a danger of catching and holding any article that the machine would encounter when reversed. To eliminate this problem, which the witness had encountered on other similar mowers, he had designed a guard plate to be installed across the rear wheels of the machine. Two hinged flaps were attached to this guard in position to touch the top of the grass. In this manner the plate would act as a bumper guard and eliminate the danger from the nip point. This was his own personal design and it had not been tested against any set of standards.
As regards the specific mower involved, the witness expressed the opinion that the chain and sprocket assembly was not sufficiently enclosed and that the lack of a proper guard made it substandard and could lead to personal injury. In his opinion, the assembly did not meet the published standards and the machine was therefore "unduly hazardous to a bystander." In his opinion, this hazard would be considerably reduced by installation of the guard device he advocated. The cost of this modification would be approximately $3.50 or less. A flat bar of this kind would eliminate the nip point. It would tend to push away from it any object with which it made contact.
On cross-examination the witness stated that he had not communicated with the American Standards Association regarding the design of lawn mowers and had never worked on industry standards. He agreed that his suggested modification would need additional tests and experiments. He also agreed with the proposition that children or young teenagers should not be allowed to operate power mowers and that since the mower was a power tool and definitely not a toy, children should be instructed to keep away from it at all times when it was in operation.
The last expert, Joseph Silbereis, was called by defendant. He is a graduate mechanical engineer with industrial experience. He was a member of the American Standards Association and had worked on the subcommittee for engineering safety since 1960. He had served as secretary and chairman of the committee. He had examined the lawn mower involved. He expressed the opinion that the chain and sprocket assembly of the machine was properly guarded in compliance with the safety specifications of the Association. The guard or housing protected the operator of the machine by eliminating the possibility of injury ...