APPEAL from the Circuit Court of Cook County; the Hon.
ROBERT E. McAULIFFE, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Plaintiff, George Martinet, sued International Harvester Co. (IH), the manufacturer, and Howell Tractor & Equipment Company (Howell), the seller, for personal injury suffered while using a bulldozer tractor. Plaintiff dismissed the negligence counts of his complaint at trial, but the counts alleging strict liability in tort were tried before a jury in the circuit court of Cook County. The jury returned a general verdict in favor of the defendants. On motion of plaintiff, the trial judge set aside the verdict and ordered a new trial. We granted defendants' petition for leave to appeal from the order granting a new trial.
Defendants argue on appeal that the order must be reversed because (a) the evidence on the issues of defect and proximate causation was sufficient to support the jury's verdict alone, and furthermore (b) the evidence on the issue of assumption of risk by the plaintiff was sufficient to support the verdict. Plaintiff argues that (a) the grant of a new trial was based on several grounds, any one of which, standing alone, would merit the relief granted and cumulatively compel the court's order, and (b) defendants have not met their burden on appeal of demonstrating a clear abuse of discretion by the trial court.
It is necessary for an understanding of the competing claims of the parties to make a somewhat detailed description of the machine in question. The IH TD-9 is a machine of the approximate size of a compact automobile and is one of the smallest bulldozers made. The motive power is provided by a diesel engine and the power is transferred to the ground to move the machine by means of a metal track on each side of the machine. Between the engine and the tracks, the drive chain contains a clutch and a gear box which provides four forward and two reverse speeds. The bulldozer blade extends across the front of the tractor and is suspended from the machine by four arms or levers; two function as the means of attachment of the blade; the other two function as levers connected to an hydraulic system which raises and lowers the blade as desired. The attachment arms extend from the blade on either side to attach to the body of the machine at pivot points located midway between the front and back of the machine and about one foot above the ground. The lifting arms are suspended over the tracks from the front of the tractor to a point approximately three feet directly above the pivot point of the attachment arms. The lifting arms thus hang about knee-high above the tracks on either side of the tractor for the forward half of each track's length. Suspended above the rear half of each track's length and thus on either side of the operator's seat are the hydraulic cylinders and rigid metal suspension system for the hydraulic and the lifting arms.
The operator's seat is located above the tracks at the rear of the tractor. The operator's controls include a foot-operated brake pedal for each track which can be locked in an engaged position. All other controls are hand-operated; these consist of steering clutches for each track, a gear selector lever located on the right side which allows selection of the forward or reverse gears or a neutral position, and a clutch lever located at the left side of the floor in front of the seat. The clutch is disengaged, thereby cutting off the power from the engine to the transmission, by pushing it toward the front of the tractor, and engaged by pulling it back toward the rear. The clutch differs from that commonly found in automobiles in that there is no spring or other force built into the mechanism to return the lever to an engaged position after it is disengaged; that is, absent an outside force, the clutch will remain engaged or disengaged when the operator removes his hand from the lever.
The TD-9 in question at trial was manufactured by IH in 1957 and purchased by plaintiff's employer from Howell in 1957. The accident occurred on July 27, 1971.
Plaintiff was the only occurrence witness. He had been hired by his employer in 1961 and began to operate the TD-9 about four years later. Prior to the day of the accident, he had never experienced difficulty operating the TD-9. He always mounted the machine in the same way: approaching the machine from the left side, he placed one foot on the attachment arm of the blade assembly, then placed his other foot on the track partly beneath the lifting arm, then swung his first foot and leg up and over the lifting arm so that he straddled that arm, then brought his other leg over the arm, stepped along the track and sat in the seat. While climbing over the lifting arm, he would hold onto it for balance and support.
He testified that if he had to dismount the machine during the workday, he would leave the motor running because the diesel engine required a cool-down period between stopping and restarting, which would needlessly interrupt the work.
The day of the accident was hot and dry, but the peat soil on which he was working was "mucky" and "slimy" just beneath the surface. He was levelling the field and had backed the TD-9 to a point where he could attach a disc roller to the tractor's draw bar. He left the transmission in low reverse gear, disengaged the clutch by pushing the clutch lever forward, and dismounted to attach the disc roller, leaving the motor running. He had followed this sequence many times before and had observed his employer do it the same way.
After making the attachment, plaintiff began to mount the machine in his usual manner, but as he started to lift his left leg over the lifting arm he slipped and fell forward, striking the clutch lever with his right hand. The clutch engaged and the tractor moved backwards under power. Plaintiff was pulled by the moving track underneath the lifting arm support and hydraulic cylinder support arm. He was not able to pull his left leg out until, after struggling against the pull of the track, he managed to reach the clutch lever and disengage it. As a result of the accident, plaintiff's left leg required amputation.
Plaintiff also testified that he did not see the owner's manual issued to his employer at the time the TD-9 was purchased until after the accident. He saw no safety warnings affixed to the machine. He was familiar with a bulldozer known as the TD-9B, built by IH, which differed from the TD-9 in that it had a handhold attached for the operator's use in mounting and the blade-lifting hydraulics did not obstruct the operator's path to his seat. A similar sized bulldozer, fabricated by a different manufacturer, has the same features as the TD-9B. Plaintiff testified that he did not believe it was unusual to leave the TD-9 in gear when dismounting.
On cross-examination, plaintiff testified that even with his prosthetic leg he continues to operate the TD-9 for his employer and still mounts the machine in the same manner. He considered the TD-9 to be a simple, easy and enjoyable machine to operate. He knew that it was possible to put the transmission in neutral and agreed that it should be placed in neutral when dismounting "most of the time." He acknowledged that it took little time or effort to change gear and that there was no efficiency reason for leaving in it reverse before the accident because his next movement would be forward. He had worked in slippery fields for his employer for 10 years before the accident and knew that slippery substances could stick to the tracks and make them slippery. "Natural" handholds were present on the TD-9, notably the lifting arm and he always used them when mounting. He didn't know "exactly what happened" or why he slipped at the time of the accident. He knew before the accident that if the gear shift lever was in a drive position and the clutch was then engaged the tractor would begin to move. He knew before that accident that if he stood on the track and the track began to move, he would be in a position of danger. When asked if he consciously left the transmission in reverse, plaintiff stated, "I couldn't say it was an oversight. I just did it."
On redirect examination, he testified that if the transmission was left in gear and the clutch was disengaged, the tractor would not have moved. Running the TD-9 was part of his assigned duties; as an employee he had no choice of which machine to use to do a job.
Plaintiff's employer Tameling testified for plaintiff that he had purchased the TD-9 new from Howell in 1957 and that the bulldozer blade was attached when it was delivered. He felt the only practical way to mount the machine was from the left side and in the same manner as described by plaintiff. He sometimes left it in gear when dismounting himself. On cross-examination, he stated that plaintiff still operated the TD-9, as well as another, larger machine which requires several steps up a ladder to mount. In training plaintiff to operate the TD-9, Tameling did tell plaintiff to disengage the gears when dismounting. The owner's manual states that it should always be in neutral before dismounting. He always felt that the mounting method he described was dangerous. On redirect examination, Tameling testified that he did not attach any handholds to the TD-9 because he "wouldn't know where to put them.
Plaintiff called Jeremy Davis as an expert witness. Davis testified as to his qualifications, including a master's degree in engineering and his registration as an engineer in Illinois and other States, memberships in several professional societies and 30 years' experience in design engineering, which he defined as that branch of engineering in which an idea is formed and translated into drawings from which machinery is built. Though he had never operated a diesel-powered machine or an earth-moving machine, he did not need to operate such machines to understand how they worked. He inspected the TD-9 in question for two hours in August of 1974, taking measurements and photographs in the process. At this point, several photographs were admitted into evidence. He described the workings of the clutch. With the clutch disengaged fully, the drive train is "100% disengaged" and the machine will not move even if left in gear. If the transmission were in neutral and the clutch disengaged, the drive train is "200%" disengaged because it is disconnected in two places. If the brakes were ...