APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
H. FITZGERALD, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Plaintiff, Reinhard Gaenzele, challenges the jury verdict and judgment for defendant in the circuit court of Cook County in this strict products liability case on grounds that the trial court's refusal of tendered instructions and exclusion of certain evidence denied him a fair trial. No question is raised as to the sufficiency of the evidence or the trial court's judgment for plaintiff on defendant's affirmative defense of assumption of risk.
The issues presented for review are (i) whether the jury was adequately and accurately instructed and (ii) whether the trial court improperly excluded evidence such as to deprive plaintiff of a fair trial.
The record indicates plaintiff sustained injuries when a movable gantry, manufactured by defendant and sold to plaintiff's employer through a distributor in 1966, collapsed on him at plaintiff's place of employment on November 20, 1969, while plaintiff was attempting to adjust the height of the gantry. The gantry is a movable hoisting device in the form of a carpenter's sawhorse, the top of which consists of an I-beam about 10 feet in length supported on each end by two tubular legs mounted on caster wheels. These legs are, on each side, connected by tubular crossmembers just above the caster wheel frames to form the main leg assemblies. Each leg has a lower section which, during adjustments of height, telescopes into and out of an upper section. To the bottom of the upper sections, spring-loaded bolts are attached by means of a collar which houses the bolts. Varied heights between 9 and 15 feet are secured by the insertion of the bolts into holes spaced at 6-inch intervals in the lower sections. The springs attached to the bolts and housed in the collars are intended to automatically reinsert the bolts into the holes of the lower sections as the legs telescope. Additional tubular supports are also affixed to the I-beam and culminate in attachments to the upper sections opposite the bolts on each leg. Suspended by a movable trolley from the I-beam is a block chain hoist which, by means of wheels within the trolley, can be rolled to any position along the I-beam.
At the time of the accident, plaintiff was attempting to adjust the gantry from a high position to move it under a doorway. Assuring himself the bolts were secure, he disengaged one of the bolts with his right hand. It is not clear whether he had, as in the past, held the upper section with his left hand, since plaintiff could not recall what he was doing with that hand. While disengaging the bolt, the lower section of the leg telescoped rapidly into the upper section, failing to reinsert into a lower hole, as a result of which the gantry collapsed. Plaintiff was struck by the block chain hoist thereby sustaining the injuries which are the subject of this suit.
Plaintiff had received no warnings or instructions on adjusting the height of the gantry beyond what appears on the gantry itself. On the legs of the gantry are attached labels which instruct the operator how to hold the bolt in a disengaged position by use of a cotter pin which plaintiff asserted he did not utilize. No other warnings or instructions appear on the gantry.
During a section 60 (Ill. Rev. Stat. 1973, ch. 110, par. 60) examination of Bernard E. Wallace, president of defendant, plaintiff's attorney inquired about a gantry jack kit which attaches to the lower section and takes the weight off of the upper section. This would, if functioning properly, prevent the leg from telescoping so rapidly and tipping over. Wallace admitted the kit was first produced by defendant in 1959, withdrawn in 1962, and produced again subsequent to the manufacture of the gantry in issue in 1966.
Plaintiff's attorney then asked if "any devices that could have been used as safety features" existed to prevent the leg from telescoping and the gantry from collapsing. The court sustained defendant's objection to this question on grounds that the witness was being asked to provide a remedy out of his general knowledge. The court remarked that this sounded more like a discovery question than questioning in pursuit of proof of facts at trial.
Turning to changes which had been made in the design of the main leg assembly since 1966, plaintiff's attorney asked whether any of these changes related to safety features. The court sustained defendant's objection based on its belief that plaintiff's attorney was, thereby, attempting to make Wallace into an expert witness without proper foundation.
Three of plaintiff's exhibits were subjected to exclusion or partial exclusion, which actions are raised as errors before this court. Plaintiff's exhibit 33 is a printed description of "Safety Features of the Wallace Adjustable Leg" published in February of 1973. Of the four "features" depicted, the trial court found only the last one a Safety Stop Pin to be relevant to the facts in this case. Placing this pin in the hole below the hole to be engaged during height adjustments prevents rapid telescoping past all the holes in the lower section, as apparently occurred in the present case. The three other safety features included the spring-loaded bolt itself, a safety notch to prevent the bolt from being pulled completely out of the gantry and a lock to prevent unauthorized tampering. The court admitted that portion of exhibit 33 insofar as it depicted the Safety Stop Pin and excluded the other three features as irrelevant. Plaintiff's exhibit 34 was excluded completely. Published in September of 1973, it consists of operation and safety instructions relating to proper caster wheel positioning, various methods used to support and adjust the gantry (including overhead supports such as cranes, tripods and forklifts), instructions on adjusting height by manipulation of legs and bolts (including use of Safety Stop Pins), and instructions on the use of safety cables and adjustment of caster frames. The court considered exhibit 34 to be "duplicitous" of exhibit 33 and to contain irrelevant material as well as warnings and instructions based on post-occurrence knowledge. He therefore refused to admit it. The court also refused to admit a leg assembly from a gantry with the new safety features depicted in exhibit 33 attached because it was cumulative and would do more harm than good. Plaintiff was allowed to examine Wallace as to the Safety Stop Pins which, Wallace admitted, should prevent the gantry from tipping over. Wallace testified that the pins were not available when the gantry at issue was manufactured nor at the time of the accident.
The remainder of the evidence presented is not relevant to the issues on appeal since the sufficiency of the evidence to sustain the verdict and judgment is not challenged. At the instructions conference, several of plaintiff's instructions were refused. Plaintiff's burden of proof instruction was, however, given. Also given was plaintiff's instruction 24 stating plaintiff's theories upon which relief should be granted. At post-trial proceedings, the court stated it had prepared this instruction after finding two successively tendered issues instructions submitted by plaintiff unsatisfactory. Plaintiff did not object to this instruction.
The first issue plaintiff presents is whether the jury was adequately and accurately instructed as to the law applicable to the case. Plaintiff contends that error was committed in the refusal of most of his tendered instructions. His chief argument as to this issue, however, lies in his ...