Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP-73-C-81 CALE J. HOLDER, Judge.
Swygert and Sprecher, Circuit Judges, and Hoffman, Senior District Judge.*fn1
This appeal raises the question whether a manufacturer has a duty to incorporate safety devices in a product, designed and manufactured free from defects, in anticipation that the purchaser may misuse the product.
Appellee Herbert Latimer brought this diversity action against Appellant General Motors Corporation seeking damages for personal injuries received in a truck accident. Latimer was the driver of the truck, General Motors, its manufacturer. A jury returned a $75,000 verdict for Latimer. The trial judge denied General Motor's motions for directed verdict and judgment N.O.V. This appeal followed.
Latimer was an over-the-road truck driver for McLean Trucking Company. About 2:00 A.M. on February 23, 1972 he left the McLean depot in Indianapolis bound for Kansas City. He drove a 12,000 pound cab-over engine diesel single axle tractor, pulling a trailer loaded with 24,000 pounds of freight. The tractor had been built in 1965 by General Motors in conformity with special design specifications furnished by McLean.
Latimer was driving his tractor-trailer west on Interstate 70. It was 5:30 A.M., the temperature had dropped to 28 degrees, and a severe north wind was hitting the right side of the tractor-trailer. The highway was wet. The truck descended a slight incline and approached a bridge near the Illinois state line. Ice had formed on the left lane of the bridge and as Latimer drove onto the bridge, the truck drifted into the south lane and struck the bridge structure. It then veered to the north, struck the guardrail, and overturned as it catapulted down an embankment. Latimer suffered injuries for which he sought damages in this action.
In his report of the accident to his employer, the McLean Trucking Company, Latimer related that as he went onto the bridge the tractor was caught by a cross wind and was "carried across left lane into bridge, hit bridge three times on left side. . . came out of bridge, slid across pavement to right, unit came to rest broadway on the right side." Latimer testified at trial that there were no defects in the vehicle, and that he made no mention of any mechanical failures in any of his reports.
The plaintiff's entire case was built around the testimony of Robert Staley, an operator of a wrecker and mechanic business, who had service contracts with numerous trucking companies around Casey, Illinois, his business location. Staley testified both as an on-the-scene witness and as an expert. Called to the scene of the accident shortly after it's happening, he inspected the overturned truck, saw the brake air lines were broken, and the drive shaft was separated from the differential. He deduced that the pinion nut had come off the rearward connection of the drive shaft at the differential. It was his opinion that the drive shaft had struck the air lines, breaking them because they had been dangerously located at a point where they could be cut by the drive shaft if separated, which resulted in the brakes in the unit locking. After observing the broken air lines and separated drive shaft, Staley said he knew that the pinion nut was not far away, went back up the road, and found it. Staley said he had seen pinion nuts come off before and it was his opinion that a "U-clamp" could have been put around the drive shaft to restrict its motion if it would become separated, thus preventing it from striking the air lines.*fn2
It was undisputed that during the seven years driving of the tractor for over 650,000 miles, it was McLean's duty to service and maintain the unit. The pinion nut which allegedly came off the pinion shaft (thereby allowing the accident to occur under plaintiff's theory) was removed at least on two occasions by McLean employees when the differential was removed from the tractor. The pinion yoke was also replaced and the differential yoke seal was replaced. In April 1969 a new pinion nut was placed on the pinion shaft when a rebuilt differential was installed by McLean. New universal joints were installed in May and November of 1969.
Dr. Packer, an accident reconstruction expert, testified for General Motors that it was his opinion that the drive shaft was separated from the differential when the vehicle catapulted over the guardrail. It was also his opinion that the accident was caused by a combination of operator errors and bad weather.
Dr. Manos testified in rebuttal as an expert for the plaintiff that, in the absence of the cotter pin, the pinion nut would vibrate off and the drive shaft "walk" off the pinion nut, popping the grease cap under pressure, separating and striking the air lines, causing the brakes on the tractor to lock.*fn3
The plaintiff based his claim for damages on three theories: strict liability, negligence, and implied warranty. He alleged that, as a result of defective manufacture and design of a cab-over engine tractor, a "nut came off a yoke on the tractor-trailer causing damage to the truck which in turn caused the truck to lose air pressure in its brake system and all brakes locked up." At trial the plaintiff asserted that General Motors' failure to incorporate certain safeguards in the tractor was the proximate cause of the accident. Specifically, he maintained that General Motors failed either to install a ...