APPEAL from the Circuit Court of Winnebago County; the Hon.
ROBERT GILL, Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT.
This is an appeal from the judgment of the Circuit Court of Winnebago County entered for the defendants Jeffrey Galion, Inc., and Howell Tractor and Equipment Company, and against the plaintiff, Keith Lancaster. Judgment for the defendants was based upon the jury's affirmative answer to a special interrogatory which the trial court found inconsistent with the jury's general verdict for the plaintiff for $185,000. Plaintiff appeals on the ground that the trial court erred in giving the special interrogatory over the objection of the plaintiff and that the plaintiff's objection was sufficiently specific to preserve the issue for review.
On the morning of June 19, 1972, plaintiff was injured while working as an employee of Rockford Blacktop Construction Co. A tandem roller manufactured by defendant, Galion, and sold to Rockford Blacktop by defendant, Howell Tractor, struck and severely injured plaintiff's left leg. Ronald Herbig, a co-employee and operator of the roller, testified at trial that he arrived at work at 6:15 on the morning of the accident, spoke to the plaintiff for a few moments, and then started the roller to let it warm up. Plaintiff was standing on the ground three to six feet in back of the roller preparing his road paver for the day's work. The roller was apparently in gear at the time the engine was started and, when Herbig released the parking brake and disengaged the clutch, the machine jumped backward, striking the plaintiff. Plaintiff subsequently brought suit against defendants on a theory of strict product liability, alleging that the roller was unreasonably dangerous at the time it left the possession and control of the defendants in that it contained no neutral start switch, no ignition lock, and no warning or directional signs indicating the position of the gear shift lever and diverter valve.
In the conference on instructions defendants tendered the following special interrogatory to which plaintiff objected:
"Does the jury find from a preponderance of the evidence that the misuse of the roller by Ronald Herbig, an employee of Rockford Blacktop, was the proximate cause of the injuries sustained by the plaintiff in the occurrence in question?
After considerable discussion the trial court overruled the plaintiff's objection and the special interrogatory was submitted to the jury. The jury returned a general verdict in favor of the plaintiff, but answered the interrogatory in the affirmative. On motion by defendant, the trial court set aside the general verdict and entered judgment for defendants on the answer to the special interrogatory. The plaintiff's post-trial motion was subsequently denied, and this appeal followed.
We first address the issue of whether plaintiff adequately preserved his objection to the special interrogatory for review by this court. Special interrogatories shall be tendered, objected to, ruled upon, and submitted to the jury as in the case of instructions. (Ill. Rev. Stat. 1977, ch. 110, par. 65.) Counsel may object at the conference on instructions to any instruction prepared at the court's direction, regardless of who prepared it, and the court shall rule on these objections as well as objections to other instructions, the grounds for these objections shall be particularly specified. (Ill. Rev. Stat. 1977, ch. 110A, par. 239(b).) Our supreme court has recently held:
"To preserve an objection to an interrogatory as well as an instruction, one must set forth with specificity so the trial court is advised of the specific nature of the objection before ruling. (Supreme Court Rule 239(b), 58 Ill.2d R. 239(b); Delaney v. Badame (1971), 49 Ill.2d 168, 178; see Havlovic v. Scilingo (1972), 7 Ill. App.3d 918.) Additionally, even if plaintiff had properly objected, he is still required to tender a proper instruction. Supreme Court Rule 366(b)(2)(i), 58 Ill.2d, R.366(b)(2)(i); Department of Public Works & Buildings v. Klehm (1973), 56 Ill.2d 121, 127, cert. denied (1974), 417 U.S. 947, 41 L.Ed.2d 667, 94 S.Ct. 3072." Saldana v. Wirtz Cartage Co. (1978), 74 Ill.2d 379, 387, 385 N.E.2d 664, 668.
Defendants argue that the plaintiff failed to present a specific objection at trial to the form of special interrogatory, and thus suggest that the issue has been waived.
During a reconvened conference on instructions, plaintiff objected to the interrogatory tendered by the defendant, even asking for a brief recess to go to the library to provide the trial court with the specific case upon which plaintiff based his objection that the special interrogatory did not go to an ultimate fact and was therefore improper. In his argument plaintiff maintained that the unreasonably dangerous condition of the roller when it left the manufacturer's control was the ultimate fact in the case and further that the special interrogatory would impute the negligence of Herbig to the plaintiff contrary to the holding in Lewis v. Stran Steel Corp. (1974), 57 Ill.2d 94, 311 N.E.2d 128. It is also clear that the trial court was fully informed as to the basis of the plaintiff's objection since it joined in the colloquy by clarifying the meaning of ultimate fact as one that would control the verdict and by observing that misuse was not an affirmative defense.
This, then, is clearly not a case like Struthers v. Jack Baulos, Inc. (1977), 52 Ill. App.3d 823, 825, 368 N.E.2d 148, where the plaintiff made only a "general objection `for the record.'" Here plaintiff made a specific, substantive objection. Apparently defendants concede that the objection was sufficient to preserve review of the substance of the interrogatory; *fn1 defendants argue, however, that the issue of the form of the interrogatory was waived. The Struthers case highlights the problem of trying to distinguish between the form and substance of an interrogatory. There the challenged special interrogatory erroneously defined contributory negligence in terms of "due care and caution" instead of "ordinary care." Further it made no reference to proximate cause. While these shortcomings may be classified as errors in form, the court found that the interrogatory, as given, was not inconsistent with the general verdict. (52 Ill. App.3d 823, 827.) In short, a defect in form can also cause a special interrogatory to fail to control an ultimate issue of fact. Thus we would have ...