APPEAL from the Circuit Court of Cook County; the Hon. BEN
SCHWARTZ, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This is an appeal by plaintiff from summary judgments in favor of both defendants in a strict products liability action seeking damages because of personal injuries. In granting summary judgments, the trial court found as a matter of law that plaintiff assumed the risk of injury and that the product was not a proximate cause of his injuries.
The facts before the trial court were contained in excerpts from the depositions of occurrence witnesses which had been attached to the motions, memoranda of the parties, answers to interrogatories, and the affidavits of plaintiff and his expert witness. These documents revealed that injury occurred when the undercarriage of a moving railroad car crushed the legs of plaintiff, who was working underneath the car. The car had been manufactured by Pullman and was designed to transport products such as cement, which is loaded by cascading the material into the car through an opening on the top of the car and is unloaded by the force of gravity in a funneling motion when the discharge gate at the bottom is opened.
For the most part, the car had a rectangular shape but, to facilitate unloading, a portion of the car's floor was cut away and an undercarriage attached. The undercarriage consisted of two metal panels which were situated perpendicular to the ground and parallel to the tracks and two other panels which sloped toward each other as they approached the ground. This funnel configuration was cut off approximately eight inches from the ground by a discharge gate which was horizontal to the ground and slid back and forth on ledges to the opened and closed positions. When the gate was opened, the force of gravity and the funnel configuration of the undercarriage caused the cement to empty. Prior to loading, and throughout the car's transportation, the gate must be closed. Plaintiff was injured while attempting to close such a gate preparatory to the loading of the car.
The record discloses that plaintiff's employer, Medusa, Inc., leased cars of the aforementioned type from Northwestern, including the car involved here, and that Northwestern crews delivered the cars to the edge of Medusa's yard. Thereafter, the cars were moved by Medusa's crews into its yard, using one of the two locomotives owned by it. To ready the cars for loading, a Medusa engine would push them into one of the seven tracks in the yard, where normally they would stand until workmen had closed the discharge gates.
Plaintiff and his immediate supervisors, foreman Huyett and assistant foreman Santos, outlined the usual practice in closing these gates. First, a man would stand next to the car and insert a four- to five-foot-long iron bar into a knuckle joint on one of the ledges which supported the discharge gate. Manipulation of the bar in the knuckle was supposed to close the gate. However, the men stated that very frequently this operation would not close the gate, in which event a man would climb under that portion of the car which was several feet above track level, and he would then face the undercarriage and apply direct impact force to the gate with a 30-40 pound bar (bump bar). Santos said that in 80-90% of the cars, the gates could only be closed by using the bump bar. Should this method fail to close the gate, the car would be rejected by the foreman unless the car was badly needed in which event a man would climb inside of the car in an attempt, with a hammer and chisel, to clean the grooves of caked cement.
On the day of his injuries, plaintiff with Huyett and Santos was preparing railroad cars for loading. At approximately 7:30 a.m., they approached a string of five cars which were standing at the northern end of track #3. The track curved away from the men at the southern end of the yard and this curve, together with the presence of cars on tracks #2 and #3, obscured their view of the southern end of track #3 so that they were unaware of the presence of one of Medusa's locomotives on track #3. They set about preparing the five cars for loading. Huyett attached seals to the ladders of the cars while Santos attempted to close the discharge gate on the northernmost car by using the long bar to turn the knuckle, but he was unable to close the gate. Plaintiff then crawled under the car and struck the gate several times with the bump bar, when suddenly and without warning the car began to move. As the undercarriage, which was only about eight inches above ground, came towards him, he reached up to grip the metalwork of the car in an attempt to move with it before the undercarriage reached him. He was not successful, and it came in contact with his legs, causing serious injury to them. As soon as Huyett noticed the movement of the cars, he ran southward and signaled to the crew in the locomotive to stop. Neither plaintiff nor his supervisors saw or heard the locomotive before the movement of the cars. Plaintiff was able to crawl out from beneath the car but almost immediately lost consciousness.
It appears to have been the practice for a switchman to have set blocks to prevent movement of the cars while workmen were preparing them for loading, but this was not done on the date in question. Further, plaintiff and his supervisors stated they had no advance warning of the movement in question, either by a bell or whistle. The record also discloses that plaintiff knew of no occurrence in the past where a workman was injured while cleaning a car; that he had seen the engine push the cars onto track #3, but that once they were stopped he could no longer see the engine and did not see it at any time thereafter; that he believed the engine had left to get other cars; that he assumed the cars were ready for cleaning; that he asked his supervisors whether they wished work to be done on them; and that he walked to the cars with his supervisors to ready them for loading. Huyett also testified that when the cars were pushed onto a loading track, the practice was to uncouple the engine; that the switch crew would leave the cars on any available track to be cleaned, and they were cleaned wherever they had been left; that it was a practice to use chocks or steel derails while the cars were on the cleaning tracks, and it was the responsibility of the switchman to set them out; that the switch crew would check for the presence of workmen before recoupling the engine. Further, he testified that before the accident, plaintiff told him the cars had arrived and asked whether they were to be cleaned to which he replied, "Yes, I'll be right with you"; that he did not see the locomotive at the southern end of the track; that he heard a whistle and the tightening of couplings simultaneously with his observation of movement; that cars were to have been placed on track #1, but the switch to that track was frozen, and the cars were moved onto track #3.
Santos, plaintiff's assistant foreman, also testified that when the cars are pushed onto a track, the engine is generally uncoupled; that 80-90% of the gates on Northwestern cars could only be closed by use of the bump bar; that Huyett told him and plaintiff to clean the cars on track #3; that he tried to close the gate on the car in question but couldn't and, when he told plaintiff that he needed help, the latter climbed under the car and that there was no warning before the car was moved. Frank Conrad, engineer of the train in question, stated that a verbal radio message from the foreman was the usual method for an engineer to learn that workmen were cleaning the cars; that he did not remember any other injury to any other employee trying to move the discharge gate with a bump bar; that lack of communication was the cause of the injury that is, someone gave the wrong radio signal to the switch crew, so that they were unaware of the cleaning of the cars at the time of the movement.
Plaintiff's expert witness, Jeremy Davis, stated that in his professional career he had examined more than a hundred different railroad cars for the purpose of evaluating design defects therein. In his experience, he has noted that cement has a tendency to accumulate and cake in the grooves of the ledges upon which the discharge gate was to slide. It was his opinion, based upon a reasonable degree of scientific certainty, that the manufacturer should have foreseen not only the occurrence of this condition but also that direct impact force to the gate would be necessary to close it. Indicative of Pullman's prior knowledge that the cement would accumulate was a legend it affixed to the cars, which directed the user to clean the inside grooves when the gate was stuck. In addition, Davis stated that a design involving rollers would have actually eliminated the accumulation problem, so that the workmen could close the gate from the outside of the car without difficulty.
Plaintiff and his supervisors stated that they would climb into the cars to clean the grooves only as a last resort if Medusa needed cars very badly. In fact, they could not describe how the grooves were cleaned, except that plaintiff stated that to do so a workman would have to stand inside the car with his feet protruding through the open gate to the ground below.
• 1 Plaintiff first contends that a genuine question of material fact existed on the issue of proximate cause and that the trial court erred in determining that issue as a matter of law. Section 57 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 57) provides for summary judgments, and subsection (3) thereof contains the following:
"The judgment or decree sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving ...