APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
J. SCHALLER, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Teresa Ann Kinka (plaintiff) brought an action for personal injuries against Harley-Davidson Motor Company, Inc. (defendant). Plaintiff was a passenger upon a motorcycle manufactured by defendant. Her complaint was based upon strict tort liability and alleged a design defect in that defendant had provided an insufficient covering over the drive chain between the motor and the rear wheel. The jury returned a verdict of not guilty and answered affirmatively a special interrogatory as to whether plaintiff rode on and used the motorcycle in such a manner that she assumed the risk of injury.
Plaintiff appeals, contending only that the jury was erroneously instructed regarding the defense of assumption of risk.
On the evening of August 27, 1970, plaintiff, then 18 years old, accepted an invitation from her friend, Richard Holzer, to ride on the rear portion of the driver's seat of his 1970 model Harley-Davidson motorcycle. Plaintiff had ridden with Holzer in this manner once before. As she mounted the motorcycle, Holzer handed her his jacket, indicating that she should hold it for him. Because there was no strap or handle for plaintiff to hold, she put her arms around Holzer's waist and held the jacket in her hands in front of him.
Holzer drove the vehicle out of the parking lot of Chicago's Rainbow Beach. One of his friends, driving a motorcycle without a passenger, preceded them. They drove along 79th Street to its intersection with Lake Shore Drive. There the other cyclist went on but Holzer stopped for a traffic light, prior to a right turn onto northbound Lake Shore Drive. Plaintiff removed her arms from around his waist and commenced to put on the jacket so that she would not have to hold it in her hands. She did not tell Holzer that she had let go of him, although he testified that he was aware that her arms were no longer around him. She then placed her right arm into the right sleeve of the jacket. She was attempting to put on the left sleeve when the traffic light changed and Holzer started and turned the corner. At that moment, a gust of wind blew the jacket away from plaintiff's left arm, and into the rear wheel of the motorcycle, on the right side. Plaintiff testified that she screamed because she did not know what was happening. After about one block, Holzer stopped and the motorcycle turned over on its left side, pinning him to the ground.
The motorcycle sprocket is a circular plate with circumferential teeth similar to a gear. It is fastened to the center of the rear wheel. Power is transmitted from the motor back to the sprocket and rear wheel by a chain which fits into the sprocket teeth. These teeth have rounded outer surfaces but are cut sharply on both sides. Plaintiff's arm and the jacket were caught and entangled in the chain and sprocket so that she was severely injured.
Both parties introduced expert testimony regarding the design of the guard on the motorcycle's chain.
Plaintiff called John Sheehan, a metallurgical engineer, who spends a portion of his time doing accident reconstruction work. His work as an engineer is concerned primarily with metallurgy as applied to types of materials used for various parts as distinguished from the configuration or design of parts and products. He testified that he was generally familiar with operation of a motorcycle. He had never owned or ridden on a motorcycle and had done no research regarding motorcycles in preparation for the trial. He had never done any design work on motorcycles. He had examined the motorcycle involved in the accident and had a copy of the manufacturer's manual on its operation. He was not aware that the chain of this particular motorcycle was designed so that it was continuously oiled until he heard defendant's expert witness testify to that effect.
In response to a hypothetical question, Sheehan testified that there was a greater likelihood that the chain guard on the 1960 model of defendant's motorcycle could have been more effective to prevent entanglement of clothing in the sprocket or chain than the guard on the 1970 model here involved. He qualified this opinion by saying that he could not state categorically that the older type chain guard as used in the 1960 model would have prevented the accident but only that it would have "minimized the possibility". On cross-examination, he conceded that in his pretrial deposition he had testified that he had then not yet formed an opinion as to how the accident occurred, but that he believed it more logical that the jacket had been caught in the spokes of the rear wheel. He had reached the conclusion stated in his testimony before the jury within "the last week or two" prior to trial.
Plaintiff also called Richard Huebner, defendant's production engineer in charge of motorcycles and examined him as an adverse witness. He is a qualified engineer employed by defendant since 1957. He has had experience in the design of motorcycle chain guards. In 1970, defendant did not have a special department in charge of product safety. The witness testified that the guard on the 1970 model had been installed at the factory.
He expressed the opinion that the function of the chain guard is primarily to protect the rider against being spattered with mud and oil; and, secondarily, to protect the rider from getting caught in the chain. If the chain and sprocket were not covered or were improperly covered, it would be a hazard to a passenger. He compared the chain guards of the 1960 and 1970 models and concluded that, although the later model is smaller and more streamlined, both models function equally well so that they present no difference in adequacy as regards safety. He testified that the motorcycle's chain is a roller chain and has no sharp edges on which clothing could get caught. On re-cross-examination, he added that it is conceivable that something could snag on the motorcycle's chain. In his opinion it would be unsafe for a person to attempt to put on a jacket while the motorcycle was in motion. He also testified that nothing could get caught in the upper portion of the chain and sprocket because the top portion of the chain is moving forward from the sprocket toward the motor and front wheel. That is, the chain at the lower or bottom area is moving into the sprocket but at the top the chain is moving out of or away from the sprocket.
We note here that the difference in the appearance of the guard above the sprocket on both models of the motorcycle appears from two photographs received in evidence. In the 1960 model, the guard is larger and curved down at its rear portion so as to partially enclose most of the upper half of the sprocket. In the 1970 model here involved, the guard is smaller and extends horizontally straight over the top of the sprocket and slightly to its rear.
Defendant alleged in an amendment to its answer that plaintiff as a passenger assumed the risk of injury "by putting on a jacket while the motorcycle was in motion with moving parts in which the jacket could become entangled." Thus, it alleged, the product was being misused "by being used in a manner for which it was not intended by the manufacturer."
Plaintiff tendered this instruction (Plaintiff's No. 4) taken from Illinois Institute For Continuing Legal Education, Illinois Product Liability Practice § 9.20 (1973):
"The Plaintiff has the burden of proving each of the following propositions:
First, that there existed in the motorcycle a condition that rendered it unreasonably dangerous in the way claimed by the Plaintiff as stated to you in these instructions;
Second, that such condition existed at the time the motorcycle left the ...