APPEAL from the Circuit Court of Cook County; the Hon. JOHN C.
FITZGERALD, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
The jury returned a verdict in favor of plaintiff against Maierhofer Brothers, Inc. (hereafter defendant) only and assessed damages in the amount of $40,000. The jury exonerated all other defendants. Judgments were entered upon these verdicts. The trial judge then granted the third-party defendants' motions for directed verdicts on defendant's actions over for indemnity.
Defendant presents two issues for our consideration: (1) whether the verdict and judgment against defendant is supported by the manifest weight of the evidence, and (2) whether the ruling by the trial court in favor of the third-party defendants on their motions for directed verdicts was reversibly erroneous. As cross-appellant, plaintiff claims that if the judgment against defendant is reversed, the judgments in favor of the additional defendants should also be reversed.
The occurrence giving rise to this action can be simply stated. On February 28, 1967, School Bus No. 30, owned by defendant and operated by its agent, went out of control in the vicinity of 4400 North Lake Shore Drive. Without colliding with other vehicles, the bus veered to the left, crossed a raised median divider and four southbound lanes, coming to rest against a tree in the parkway west of Lake Shore Drive. Plaintiff, a passenger in the bus, sustained leg injuries.
Plaintiff brought this action for damages against the bus driver, Gene Deck, and defendant, alleging negligence in the operation and maintenance of the bus. Deck and defendant filed a third-party complaint against General Motors Corporations and All Brake & Drive Unit Service, Inc., the manufacturer and distributor of the chassis on Bus No. 30, and against Firestone Tire & Rubber Company, the manufacturer of the left front wheel rim assembly. In the event that defendants were held liable to plaintiff, they sought indemnification on one of three theories: strict liability in tort, negligence, or breach of warranty. Plaintiff amended her complaint and added a count in strict liability in tort against the third-party defendants and also a count in negligence against Firestone.
The evidence reveals that for at least 30 years preceding the accident, defendant's primary business involved providing school bus transportation. Bus No. 30 was part of defendant's fleet of approximately 80 buses. Defendant had a maintenance garage where all mechanical work on its vehicles was performed. Before considering the issues raised by defendant, it is necessary to summarize the pertinent testimony adduced at trial.
The bus driver testified that he was travelling below the speed limit in light traffic at the time of the accident. He heard a noise, the left front portion of the bus dropped, and the bus veered to the left as the steering wheel yanked out of his hand. He was unable to stop the bus by depressing the brake pedal, or to otherwise regain control of the vehicle.
An expert in metallurgy, Dr. Gordon, was engaged by defendant to investigate the cause of the accident. *fn1 Dr. Gordon examined the wheel assembly of the left front tire of Bus No. 30. *fn2 He testified that sections of the wheel assembly were heavily corroded, particularly in the vicinity of the trough on the base rim. He also observed rust on the edge of the side ring located near the trough. Part of the locking lip on the side ring was broken off, which Dr. Gordon attributed, in part, to corrosion. Similar signs of heavy corrosion in the trough area of 20-30 other wheels dismounted from defendant's buses subsequent to the accident were observed. In his opinion, the locking lip would not have broken off unless it had undergone severe corrosion occurring over an extended period of time. He further stated that since the lip is not visible when the wheel is assembled, merely wire brushing the outside of the wheel assembly would not effectively solve the problem. Although he had no experience in bus maintenance, he said it would be advisable to wire brush the critical interior surfaces of the wheel assembly and then apply a preservative paint. Dr. Gordon believed that a tire, during operation, could come off of a wheel which was heavily corroded and had pieces of the locking lip broken off. Since the trough area tended to trap water within the wheel assembly, he attributed the severity of the corrosion in this area to the design of the wheel. *fn3 Dr. Gordon stated that he was unfamiliar with the nomenclature of the parts of a wheel assembly.
Representatives of All Brake testified that Bus No. 30 was delivered to defendant in 1958 and was at that time equipped with one-piece wheel rims. The chassis, which includes the wheel assembly and tires, is delivered from General Motors to a body company. All Brake then receives the bus and inspects the vehicle prior to delivery. Except for an operator's manual which is placed in the glove compartment by General Motors, neither General Motors nor Firestone supplies All Brake with literature to be distributed to its customers.
A manager of General Motors, who was not a wheel expert, testified that, to the best of his knowledge, the only recommendation General Motors makes to its customers regarding proper wheel maintenance is that the internal surfaces should be cleaned with a wire brush prior to mounting. In his opinion, the resulting force from a side ring becoming unattached from a base rim, without more, would be insufficient to sever the hydraulic brake line. In 1970, General Motors discontinued supplying two-piece rims.
An engineer for Firestone, presented as an expert with respect to truck wheels and wheel rims, testified that Firestone had manufactured the principal parts of the wheel rim assembly in question, and that Firestone had sold 22-24 million of these wheels. This type of rim is the most popular rim in the "medium truck" field. After examining the parts from Bus No. 30, he testified that the wheel assembly would probably come apart due to its heavily corroded and chipped surfaces. He also stated that the tire which had been removed from the wheel was practically bald. He testified that proper rim maintenance is necessary because an imperfect fit results from the metal to metal contact between the component parts, and therefore, water on the roadway can seep in and cause corrosion. Visible rust on the exterior of the wheel is an indication that there is probably rust and corrosion on the rim. The problem of rust and corrosion in the wheel assembly is prevalent throughout the industry. Since Firestone sells these parts through distributors, defendant would not have received any Firestone literature directly from Firestone. However, Firestone distributes literature in bulk to its customers, including General Motors, which recommends wire brushing and painting as proper maintenance techniques and the replacement of rusted rims. This literature does not state that the wheel need be disassembled periodically nor that it be painted while disassembled. Disassembling the wheel would be convenient whenever the tire is balanced, rotated or replaced. Firestone does not recommend a specific maintenance schedule to its customers. The owner of the vehicle can better determine what maintenance schedule should be followed since he is familiar with the extent of the vehicle's use and the environmental conditions to which it is commonly exposed. In his opinion, if the side ring pulled off of the base rim while the bus was moving, a "terrific noise" would ensue and the hydraulic brake line would possibly be severed. In response to a hypothetical question, he believed that a wheel rim assembly would be in poor condition, similar to the corroded state of the wheel in question, if it had only been brushed but not painted in March of 1963 and then exposed to Chicago's climatic conditions until February of 1967.
Defendant's president testified that its buses were greased every 2000 miles. Defendant does not rotate its tires, but does repair flats and replace tires which become worn out. He further testified that State law requires school buses to be inspected once or twice each year, tires to have a minimum of 3/32 tread, and the wheels to be dismounted and inspected once each year or every 10,000 miles. He said that the latter requirement does not mean that the wheel should be separated from the tire. Defendant inspected its tires in this manner about every 10,000 miles. Two-piece wheel rim assemblies, which were received from All Brake as spare parts, were mounted on Bus No. 30 in 1959 so that larger tires could be accommodated. Prior to the mishap, defendant did not know that the wheel rims required maintenance because repair manuals had not been provided with them. The witness had noticed in the past, however, mechanics in defendant's garage brushing rims to remove rust. Defendant was aware of the rust problem, but did not realize cracks could result. He did not recall receiving an owner's manual in the glove compartment of the bus. He was not certain whether defendant's mechanics were adequately familiar with this type of equipment without referring to a service manual. Defendant began keeping maintenance records in 1963. Older records are destroyed after a period of time, regardless if the vehicle to which they refer is still in operation. Defendant did not keep records showing when tires were removed and rims inspected. Defendant's maintenance records reveal that the left front tire on Bus No. 30 was replaced in March of 1963 after the bus had travelled in excess of 78,000 miles. Also, a cracked left rear wheel rim was replaced less than two months before the accident. By that time, the bus had travelled about 121,000 miles. Bus No. 30 passed an authorized safety lane inspection approximately two months prior to the accident.
Defendant's chief mechanic testified that in 1963, defendant's preventive maintenance procedure involved disassembling the wheel, brushing the interior surfaces to remove rust, and visually inspecting the exterior of the wheel assembly for cracks. This procedure did not include painting the component parts of the wheel. A visual inspection was performed every 1000-1500 miles. He stated that prior to the accident, he was aware of the necessity for proper rim maintenance. He did not recall seeing any literature distributed by Firestone, All Brake or General Motors which recommended periodic inspection and painting of the rims. The side ring of the wheel assembly in question was probably never painted by defendant because the color of the ring at the time of the accident was the same as the factory finish. The mechanic admitted that during his ten years of employment with ...