APPEAL from the Circuit Court of Madison County; the Hon.
HORACE L. CALVO, Judge, presiding.
MR. JUSTICE KUNCE DELIVERED THE OPINION OF THE COURT:
A jury trial of plaintiff-appellee Tracey Bradley's personal injury action in the Circuit Court of Madison County ended in a verdict for defendant-appellant Caterpillar Tractor Company. The trial court granted the plaintiff's motion for a new trial. We then allowed the defendant's petition for leave to appeal pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1977, ch. 110A, par. 306). The issue presented is whether the trial court's granting of the motion for a new trial was an abuse of discretion. We find that it was.
The plaintiff's action sounded in strict liability in tort. The gist of the complaint was that the absence of a rollover protective device or protective canopy on a tractor manufactured by Caterpillar rendered the product unreasonably dangerous, and that this design defect was the proximate cause of the plaintiff's injuries. The plaintiff, a heavy equipment operator, was injured on October 26, 1973, while operating the tractor in question, which had been modified for use by welders in pipe-laying operations. The tractor as modified was referred to in the construction industry as a "Tack Cat." As a result of the accident, plaintiff claimed that he had suffered damage to his spinal cord, resulting in a limited use of his legs, a condition referred to as spastic paraplegia.
The tractor was manufactured and sold in 1956 for use as a bulldozer in the construction industry. In 1967, it was purchased by Albert Equipment Company and transformed into a Tack Cat: the bulldozer blade, hydraulic lift cylinders, winch attachments, and fenders were removed; new fenders were welded on to serve as a platform to support welding equipment; and compressors were connected to the tractor's drive shaft. The Tack Cat was leased to various companies by Albert for a period of five years, then sold to Green Construction Company, a general contractor involved in pipeline construction. Green further modified the tractor by welding on front and rear vertical steel booms and placing an overhead horizontal member on the front boom. The plaintiff was employed by Green at the time of his injuries.
Although he did not see the occurrence resulting in his injuries, the plaintiff testified that he had determined what had happened, as follows: the bolt on the front boom had broken, the boom with its horizontal structure had swiveled back toward the operator's seat and dislodged a wooden ladder hanging from the rear boom, and he had been hit by the ladder. It is undisputed that the booms, the bolt that broke, and the ladder had been added to the tractor by Green Construction Company, and were not original parts of the tractor as manufactured by Caterpillar.
Prior to trial, the court entered several in limine orders to the effect that certain lines of questioning not be initiated without prior leave of court. During trial, counsel for the defendant was held in contempt of court for violating the court's in limine orders. *fn1 After the jury's verdict in favor of the defendant, the plaintiff moved for a new trial, alleging that defense counsel's violations of the in limine orders had brought prejudicial matters before the jury and deprived the plaintiff of a fair trial. This appeal followed the trial court's order granting the motion for new trial.
1 Courts> of review will not disturb such an order unless there is an affirmative showing of a clear abuse of discretion on the part of the trial court. (Ervin v. Sears, Roebuck & Co. (1976), 65 Ill.2d 140, 357 N.E.2d 500.) The reason behind this well-settled rule is the trial court's superior opportunity to observe alleged errors in the context of the trial as a whole and to determine whether the trial was fair to all parties and whether substantial justice was accomplished. (Magnani v. Trogi (1966), 70 Ill. App.2d 216, 218 N.E.2d 21.) When, however, the evidence supports the jury's verdict and there is no showing that a party was denied a fair trial, it is an abuse of discretion for the trial court to substitute its judgment for that of the jury. (Kitsch v. Goode (1977), 48 Ill. App.3d 260, 362 N.E.2d 446). As this court said in Kitsch:
"* * * [A] jury's verdict should not be disturbed by the trial court unless it is unreasonable, arbitrary, and unsupported by the evidence. Neither the trial court nor the appellate court should sit as a second jury to consider the nuances of the evidence or the demeanor and credibility of the witnesses. Granting a new trial merely because the trial court would have reached a different result, where there is evidence which if believed would support the jury's verdict, is an abuse of discretion. * * *" 48 Ill. App.3d 260, 271, 362 N.E.2d 446, 454. See also Bank of Marion v. Robert "Chick" Fritz, Inc. (1974), 57 Ill.2d 120, 311 N.E.2d 138; Ervin v. Sears, Roebuck & Co. (1976), 36 Ill. App.3d 64, 343 N.E.2d 220, aff'd, 65 Ill.2d 140, 357 N.E.2d 500; Stringer v. McHugh (1975), 31 Ill. App.3d 720, 334 N.E.2d 311; cf. Martinet v. International Harvester Company (1977), 53 Ill. App.3d 213, 368 N.E.2d 496.
Keeping these principles in mind, we will review the record in its entirety to determine, first, whether the verdict of the jury was supported by the evidence, and, second, whether the trial court was correct in concluding that the plaintiff was denied a fair trial.
The plaintiff took the stand to testify as to the circumstances surrounding the accident and the extent of his injuries. He had operated heavy equipment for more than 25 years, and had used a Tack Cat before the job on which he was injured. In essence, his job was to move the tractor where and when he was told to by the welders. The machine moved at a rate of about one-quarter mile per hour. The booms and the ladder would shake as the machine moved. The ground was level where he was working at the time he was injured. After the accident on October 26, 1973, he spent some five days at Washington County Hospital, where he was under the care of Dr. Coy. His head, shoulders, and back were bothering him at that time. In January 1974 his employer had him examined by Dr. Geise in St. Louis, and he was hospitalized at that time. Between February or March 1974, when he last saw Dr. Geise, and November 1976, when his attorney referred him to Dr. Schreiber in St. Louis, he was without medical attention. He had not had surgery on his back. He had "no feeling" in his legs and feet at the time of trial. He was able to walk with a cane if he knew where he was going. He had difficulty getting in and out of vehicles. He had told the company doctor and the neurologist who examined him prior to his testimony at trial that his back had never bothered him before the accident.
David MacCollum, a consulting safety engineer, was called as an expert witness by the plaintiff. After an extensive recital of his background and expertise, he testified that, in connection with his employment with the U.S. Army Corps of Engineers in Oregon in the 1950s, he had conducted a study regarding protective canopies for heavy equipment. Protective canopies were available in the mid-1950s. He testified that operators of Caterpillar tractors are vulnerable to upsets and moving objects. He gave the opinion that the tractor in the case at bar, as manufactured in 1956, was unreasonably dangerous and defective because it did not incorporate rollover protection and a canopy to protect the operator from moving objects. Such protective devices, in his opinion, would have prevented the plaintiff's injury.
On cross-examination, MacCollum testified that there are dangers in the operation of such equipment even with a protective device installed. Unless all the space around the operator is enclosed, objects may intrude and injure the operator. He would allow for some hazards not being protected against because of practical considerations. In his opinion, every tractor should be equipped with seat belts. In an article he wrote about tractor canopies which was published in 1958, he did not mention the use of seat belts because the seats were not yet adaptable to belts. His article had reported that in one-third of the instances of tractor rollovers in which there was a protective device installed on the tractor, there were still deaths or injuries. Today, the devices available are better than they were in the 1950s. He took into account the hazards involved in a particular situation when he recommended in his article that canopies be provided "where overhead hazards exist" and rollover protection be provided "in areas of marked differences in elevation." His article acknowledged some unknowns, such as "the load-bearing capacity of the various designs." In his view, all tractors should have rollover protection regardless of the hazards to which they are exposed. He had worked for employers, as opposed to manufacturers, throughout his professional career.
Dr. David Schreiber, a neurologist, testified that he had examined the plaintiff in November 1976. He diagnosed a condition known as spastic paraplegia a spastic weakness of the legs. Scoliosis and kyphosis (spinal curvature) pre-existed the accident. In his opinion, the plaintiff's neurological deficits were caused by the trauma of the accident on October 26, 1973, and the condition is permanent. On cross-examination, Dr. Schreiber testified that he had not received or considered a medical report from Dr. Coy, who treated the plaintiff immediately after the accident. His opinion was based in part on the fact that the plaintiff had told him that he had had no prior injury or disability. A blow to the shoulder sufficient to dislocate it might or could to a reasonable degree of medical certainty cause a spinal cord compromise.
Henry Bordeaux, a senior staff engineer at Caterpillar, was called as an adverse witness by the plaintiff. He testified that Caterpillar tractors are put to a multiplicity of uses in various types of terrain, and the operators are exposed to numerous hazards. In 1956, Caterpillar made no structure for rollover protection. Today, overhead protective structures are put on all tractors except pipelayers. The type of tractor involved in this case (Model D7) was one of the first on which rollover protection was installed, because it is used extensively in logging and land clearing, the most hazardous applications. The logging canopies available in 1956 about which MacCollum had testified did not give rollover protection. Bordeaux knew of no instance in which Caterpillar had modified ...