APPEAL from the Circuit Court of Cook County; the Hon. SIDNEY
A. JONES, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Plaintiff brought an action to recover damages for personal injuries caused by the alleged unreasonably dangerous products manufactured and distributed by defendants. The jury rendered a verdict in favor of all defendants and plaintiff's post-trial motion was subsequently denied. On appeal plaintiff contends that the trial court committed reversible errors and that the closing argument of defense counsel was improper. We affirm the judgment of the trial court. The pertinent facts follow.
In 1965, plaintiff, Raymond Crump, was employed as a grinder at Continental Can Company in Chicago, Illinois. On December 21, 1965, he was injured while operating a grinding machine manufactured and distributed by defendant Landis Tool Company (Landis). At the time of the occurrence, plaintiff was wearing a pair of safety glasses manufactured by defendant Cesco Safety Products, Inc. (Cesco), and distributed by defendant Universal Safety Equipment Co. (Universal).
Essentially, counts I and II of plaintiff's first amended complaint alleged that the safety glasses manufactured and distributed by Universal and Cesco were unreasonably dangerous in that (a) the side shields were designed, manufactured and assembled such that fatigue cracks developed in the side shields from ordinary use of the glasses; (b) the glasses and side shields were designed, manufactured and assembled in such a manner as to cause the side shields to fracture or crack when the front of the glasses was impacted; (c) the side shields were of insufficient thickness; and (d) the glasses did not protect the cornea from laceration. Count III alleged that the grinding machine designed, manufactured and distributed by Landis was unreasonably dangerous in that it was not equipped with a guard between the operator and the machine to protect the operator from being struck by pieces of metal propelled from the machine.
At trial plaintiff testified that on the day in question he was engaged in adjusting a piece of metal in the grinding machine when suddenly the metal flew out of the machine and struck his face, whereupon he experienced pain in his right eye and on his nose and chin. The safety glasses were knocked off his face as a result of the impact. At this point, one of his co-workers stopped the machine and assisted him. He was then taken to the company nurse and later to the hospital. As a result of the accident, plaintiff sustained a laceration through the cornea of his right eye, resulting in the removal of that eye.
Plaintiff further testified that shortly after his release from the hospital, he returned to the plant and while there he saw the safety glasses he wore on the day of the accident. He stated that the right lens protruded from the frame and a piece of the side shield was broken. Prior to the accident, however, the glasses appeared to be in good condition, absent any irregularities.
When questioned by the trial judge as to how his eye was injured if the lens of the glasses was not broken, plaintiff replied that he was not sure. Shortly thereafter, a discussion was heard in chambers outside the presence of the jury, during which time counsel for plaintiff moved for a mistrial based on the alleged prejudicial effect such prior questioning by the trial judge might have had on the jury. However, the motion was denied.
Upon resuming the trial, the trial judge directed the following comments to the jury:
"Ladies and Gentlemen, from time-to-time the court may ask a question or two to help the court understand what is happening and what I think will also help you understand the issues, but anything I ask [as] a question, please bear in mind I do not express my opinion as to the facts one way or the other. The facts are for you to decide and you alone and if, occasionally, I do ask a question for clarification from my part, and maybe for you, I do not intend to express my opinion as to the facts, so please keep that in mind.
You are the sole judges of the facts. I do not express my opinion at all. At any time in the past during the trial that I may ask a question it is merely to try to get something clear in my mind that I think might help you understand the issues better."
Frank A. Bittner, a design safety engineer and expert witness for Landis, testified under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 60). He stated that the machine in question was manufactured in 1943 and remanufactured to its original standards in 1965. It could accommodate pieces of metal up to approximately 72 inches long and a maximum weight of 1750 pounds. In order to grind a piece, it would have to be placed between two centers and rotated against a grinding wheel. The headstock is usually kept stationary while the tailstock is used to adjust the position of pieces according to their length.
Neither the 1943 nor the 1965 models of the machine were equipped with a guard between the operator and the work piece in order to protect the operator from pieces propelled from the machine. However, they were equipped with a splash guard which fit between two brackets on the headstock and tailstock sections. Its function is to prevent an operator from being splashed by lubricant from the machine.
Bittner further stated that he had known for the 24 years he has worked for Landis that on occasion pieces have been propelled from the machine. This fact was also known to the industry and Landis. Such propulsion can be caused by a loose headstock or tailstock, the operator's miscalculation, shallow center holes, or breakage of the grinding wheel or work drivers.
According to Bittner, it was the general practice regarding safety at Landis and in the industry for operators to wear safety glasses while using the machines. With respect to the practicality of the safety guard, he stated that to design a guard that would prevent objects propelled from the machine from striking an operator might be prohibitive of good grinding practices.
Serope Kalpakjian, a professor of mechanical engineering at the Illinois Institute of Technology, testified as an expert witness with respect to the grinding machine. In response to a hypothetical question, he stated that the machine in question was unreasonably dangerous in that it allowed matter from the working area to strike the operator and that such an unreasonably dangerous condition might or could have been the proximate cause of injury to the hypothetical person. In his opinion, a guard should have been constructed between the operator and the work area in order to prevent such an occurrence. In support of this position, he illustrated to the jury several guards he had constructed which could be utilized on the machine. He suggested that the most effective type of guard would be one made of a transparent plastic known as Lexan.
Lawrence J. Broutman, a professor of materials engineering at the Illinois Institute of Technology, testified as an expert witness with respect to the safety glasses. He stated that he examined the glasses both visually and microscopically in order to ascertain the nature of the alleged defect. In so doing, he discovered fatigue cracks on the left and right side shields. Fatigue cracks are caused by the application of stress from ordinary usage over a period of time.
Upon an examination of the fracture surface on the right side, he determined that the initial crack was caused by fatigue action. The remaining crack, however, was caused by the application of a sudden force which produced a very rapid fracture. There were also hackle marks on the fracture surface which indicated the occurrence of a traumatic impact.
An examination of the right glass lens revealed several marks on the front surface and two marks on the plastic frame surrounding that lens. In Broutman's opinion, the metal piece or brass bar struck the right glass lens, but there was no evidence that it directly contacted the side shield. He was also of the opinion that the glasses were unsafe as a result of the sharp corner created during the manufacture of the side shield, and which subsequently caused the fatigue crack; the insufficient thickness of the side shield; and the inadequacy of the material from which the side shield was produced.
In response to a hypothetical question, Broutman stated that the fracture of the side shield could have been the proximate cause of the laceration in that the missing piece of the side shield could have become wedged in between the front of the glass and one's eye socket.
Ronald Van Caporali, a consultant in glass technology and fracture analysis, testified on behalf of defendant Universal. Based upon an examination of the fracture surface on the side shield, he determined that the fracture occurred in at least five separate steps. On direct examination, the following testimony was permitted over the objection of counsel for plaintiff:
"Defense Counsel: Having made this study of the five fractures, and having examined the eyeglasses, have you formed a conclusion as to the time element involved in those five fractures?
Plaintiff's Counsel: Objection to the question without proper foundation.
The Court: You may resume the seat.
Plaintiff's Counsel: I have an objection to the question without first giving the witness appropriate kinds of credible facts, laying a proper foundation, since there is nothing that has been given to the witness on which he could base an answer to that question.
Defense Counsel: Will you answer, please, Doctor?
Answer: A hesitation point or a dwell mark does not tell you how long a crack hesitates or stops there.
Defense Counsel: So, based merely on the examination of fractures, themselves, you are unable to draw any ...