APPEAL from the Circuit Court of St. Clair County; the Hon.
KENNETH J. JUEN, Judge, presiding.
MR. PRESIDING JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Plaintiff, Illinois State Trust Company, administrator of the estate of Joseph H. Steele, appeals from a judgment of the circuit court of St. Clair County entered upon a jury verdict finding in favor of defendant, Walker Manufacturing Company, in a wrongful death action based upon strict products liability. Plaintiff's only assignments of error on appeal relate to the court's instruction of the jury.
The accident giving rise to the incident occurred on September 28, 1971, while the decedent, Joseph Steele, an airplane mechanic for the United States Air Force and part-time automobile mechanic, was working on the undercarriage of a 1968 Eldorado Cadillac. The automobile, which was supported by four safety jackstands manufactured by the defendant, fell backwards to the ground crushing Steele's head, from which injury he died a few days later.
The jackstands in question consist of a base and an adjustable post which fits inside the base and supports a saddle on which some portion of the automobile rests. The base of the jackstand was of a tripod design which was determined through expert testimony to have a weak and a strong side; that is, the side supported by two legs was less stable than the one-legged side.
Joe Davis, the deceased's employer, was working in the engine area of the same car at the time of the accident. Davis testified that he assisted in placing the jackstands under the automobile the previous day and that each stand had been positioned with the "weak" side toward the rear. Davis, who was himself an instructor, inter alia, in the use of safety jackstands at Rankin Trade School, was, prior to this incident, unaware that tripod stands have weak sides. Davis's uncontradicted testimony established that the rear stands had been placed under the automobile first. Davis explained:
"Well, you have to if you jack up the front end of the car first and put the stands under, your back end is too close to the ground; you must jack the back end up first and put the jack stands either under the frame or axle.
If you are going to do brake work you should put it under the frame and drop down; if you are doing exhaust system work you put it underneath the axle, and keep the axle in the same condition as it was running down the road. On this particular car the muffler is very close to the back axle; it has got new exhaust pipes coming down and over there is a flexible brake hose you got a brake fitting we put this in Keep the axle in relationship to the car as it was driving down the road, when we do exhaust work."
Davis further stated that he had personally inspected the floor to insure that it was free of debris and that the stands were properly positioned on it.
The saddle on these jackstands consisted of a flat piece of metal approximately 2 1/2 inches wide with a flange or ear projecting upward on each end. At the top the distance between these ears measured approximately 4 1/2 inches wide. The rear axle of the 1968 Eldorado Cadillac measured 3 3/4 inches and was rectangular in shape as opposed to the round or oval-shaped axles commonly found on passenger automobiles; thus, the axle in question did not fit completely down into the saddle of the jackstands, but rested in the valley formed by the ears on each end of the saddle. The front cross member, on the other hand, fit properly into the bottom of the saddle. Photographs taken of the scene immediately after the accident reveal that the posts of the stand had been adjusted to the maximum height of 18 inches.
Tom Dolan, professor emeritus of the University of Illinois and an expert in the field of mechanical engineering, testified on behalf of the plaintiff that the placement of the four stands with the weak sides pointed in the same direction, coupled with the failure of the rear axle to fit completely into the saddles of the rear stands, created a highly unstable condition. Dolan theorized that due to the degree of "slop" or "play" existing in the post of the stand, elevation of the front cross member slightly above the rear while placing the stands under the automobile would shift the weight of the vehicle onto the rear stands. This, according to Professor Dolan, resulted in a very precarious situation whereby a mere 100 pounds of lateral force would topple the automobile. Davis denied having applied any lateral force to the car at the time of the accident, but readily agreed that the deceased himself could have applied the necessary force in the course of tightening the connection between the exhaust pipe and the manifold with a socket wrench. In Dolan's opinion, it was entirely foreseeable to a reasonably prudent manufacturer that an experienced auto mechanic, such as either Davis or the deceased, would position the stands so that the weak side of each faced the same direction. In addition, Dolan opined that a reasonably prudent manufacturer would have foreseen that these jackstands would be placed under the rear axle of automobiles having the same dimensions as the 1968 Cadillac.
Lyle Arnes, a safety engineer and defendant's employee, testified pursuant to section 60 of the Civil Practice Act that defendant knew General Motors introduced a square rear axle on certain makes of its automobiles in 1966 and that defendant was aware that tripod type stands contain a weak as opposed to a strong side.
1 The defense presented only one witness at trial, Professor Ralph Barnett, an expert in the field of mechanical and aerospace engineering. Professor Barnett performed several tests upon the type of jackstand here involved; however, these tests were performed under conditions substantially dissimilar to those existing at the time of the accident in question. For example, in conducting his tests Professor Barnett placed the rear jackstands under the frame rather than the rear axle of the automobile. In addition, the weak sides of the front and rear jackstands were placed in opposite directions. Finally, the stands were not fully extended to a maximum height of 18 inches in the Barnett tests. In our opinion, this evidence had no probative value and should have been stricken by the court. Professor Barnett testified that in his opinion, the design of these safety jackstands was not unreasonably dangerous. According to his calculations, a lateral force of 335 to 897 pounds was necessary to topple the car in such a manner. The decedent, Barnett opined, could have generated a lateral force of only 200 pounds.
2, 3 Simply stated, plaintiff contends that the jackstands manufactured and sold by the defendant were unreasonably dangerous due to a lack of warning regarding the hazard of positioning the weak sides of all four jacks in the same direction and the hazard of placing these stands under the rear axle of a 1968 Eldorado Cadillac automobile. It is now clear under Illinois law that a product may be defective solely by its failure to warn of dangers attending its use. (Williams v. Brown Manufacturing Co. (1968), 93 Ill. App.2d 334, 236 N.E.2d 125, reversed on other grounds (1970), 45 Ill.2d 418, 261 N.E.2d 305; Frisch v. International Harvester Co. (1975), 33 Ill. App.3d 507, 338 N.E.2d 90.) The duty to warn, however, arises only where the manufacturer knows or should know of the danger (Woodill v. Parke Davis & Co. (1978), 58 Ill. App.3d 349, 374 N.E.2d 683; Knapp v. Hertz Corp. (1978), 59 Ill. App.3d 241, 375 N.E.2d 1349; Jonescue v. Jewel Home Shopping Service (1973), 16 Ill. App.3d 339, 306 N.E.2d 312), and where unequal knowledge exists on the part of the consumer/user (Frisch v. International Harvester; Peterson v. B/W Controls, Inc. (1977), 50 Ill. App.3d 1026, 366 N.E.2d 144). The defendant had a duty to warn in this case since there was unequal knowledge on the part of the decedent, Joseph Steele, and the defendant.
4, 5 In its answer defendant asserted misuse of the product as an affirmative defense in ...