APPEAL from the Circuit Court of Madison County; the Hon.
HORACE L. CALVO, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 1, 1980.
In a strict products liability action in the circuit court of Madison County, judgment was entered on a jury verdict of $180,000 in favor of plaintiff, James Hubbard, and against defendant, McDonough Power Equipment, Inc. (McDonough), for personal injuries Hubbard sustained while operating a riding lawnmower manufactured by McDonough. However, at the same time judgment was also entered against plaintiff and in favor of the two other defendants, Ruder's Mower Service Sales and Rental Company (Ruder's Mower Service), the retailer of the lawnmower, and Wollgast Supply, Inc. (Wollgast), the distributor. Following the denial of McDonough's post-trial motion which, among other things, sought entry of a judgment n.o.v., McDonough commenced this appeal.
McDonough raises numerous issues in this court, the first of which is whether the trial court erred in excluding evidence of national standards applicable to lawnmowers on such matters as stability and of test results demonstrating that McDonough's lawnmower complied with these standards. Although this matter will be discussed more fully below, we indicate at this point that on the basis of the recent opinion of our supreme court in Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill.2d 434, 396 N.E.2d 534, we must remand this cause for a new trial because of the exclusion of this evidence, sometimes referred to as state of the art evidence. Moreover, since a retrial is necessary, only those remaining issues which either question the necessity of such a retrial or involve errors which might recur upon retrial will be addressed. These issues are: whether the trial court erred in denying McDonough's motions for directed verdict and judgment n.o.v.; whether the trial court erred in admitting a certain film prepared by plaintiff and a model depicting a deadman's device; and whether plaintiff presented improper closing arguments.
The riding lawnmower which plaintiff was operating when he was injured and which he now claims was unreasonably dangerous was manufactured by McDonough in 1967. It was shipped to the distributor, Wollgast, who in turn sold it to the retailer in Collinsville, Illinois, Ruder's Mower Service. In August of 1967, Joe Fernandez of Caseyville, Illinois, purchased this mower from Ruder's Mower Service. Although he owned the mower for almost eight years, he used it only for the first four years or through 1971. During the time Fernandez owned the mower, he had it serviced regularly at Ruder's to keep it in good running order. The last time it was serviced was in April 1974. Fernandez never had any problem with the front end lifting off the ground when mowing his sloping property.
Around July 16, 1975, Fernandez sold the mower to plaintiff's father, Frank Hubbard. The mower was purchased for use in mowing Hubbard's property in Collinsville, Illinois. Photographic exhibits indicate that the Hubbard residence faced north and was elevated above the back yard, which gently sloped downhill to the south and to the east. A shorter, steeper slope ran downhill to the east from near the southeast corner of the house towards the back of the driveway.
On July 21, 1975, Frank Hubbard used the riding lawnmower to mow the back yard. He mowed for approximately 30 to 35 minutes, following a rectangular pattern which reduced the uncut area with each pass. As he mowed, he moved farther away from the house and as a result mowed up a slightly lesser slope with each circuit since the slope to the east is greatest near the house.
James Hubbard, the plaintiff, relieved his father from the job sometime before 5:30 p.m. The weather conditions were warm and dry. Plaintiff was then 15 years old, 6'1" tall and weighed in excess of 212 pounds. At the time plaintiff started mowing, only a small area remained uncut. With the mower in second gear and set at half throttle, plaintiff began mowing. In making rectangular passes on the uncut area, plaintiff made five or six trips up the slope without experiencing any problems. On each trip to the slope, he was travelling parallel to the back of the house with the ground to the right of the mower sloping upward and to the left, downward. The pitch of the slope decreased with each pass. On plaintiff's last trip up the slope, he was proceeding at a steady rate with the same gear and throttle settings as before. About half way up the slope, the mower seemed to hesitate and jerk. It lifted up and plaintiff fell off the back on the mower's right side. He looked up and saw the bottom of the mower falling onto him. He was able to push the mower away, but in doing so his right hand came in contact with the spinning blade, severely injuring it. Although emergency surgery was quickly performed, plaintiff's right hand later had to be surgically amputated. Plaintiff said that prior to the machine's hesitating, he did nothing to disturb its forward motion. Depending on the precise location of the accident, the incline was between 15° and 20° off the horizontal.
The mower which was involved in this accident was a Snapper Comet Model 265X. This model was produced by McDonough only in 1967 and 1968, but the basic design of the mower was continued on in later models. The model number indicates that the mower had a 26-inch blade and a five-horsepower engine. The mower was approximately 4 1/2 feet long and weighed about 270 pounds with approximately 70% of its weight over the rear wheels.
The strict products liability count of plaintiff's complaint asserted that this mower possessed an unreasonably dangerous condition at the time it left McDonough's control in one or more of the following respects:
"a) Said mower was so designed and manufactured as to be top heavy and prone to turn over;
b) Said mower contained inadequate or no warnings;
c) Said mower failed to have adequate protection and/or guarding devices to protect persons using it in the proper manner."
At trial the plaintiff's position with respect to the defects of the mower was clarified further as he endeavored to establish two primary points: first, that McDonough's machine possessed a design defect which made it unstable and apt to overturn on inclines of 15° or more, especially when subjected to intentional or unintentional torque disturbance; and second, that at the time this mower was manufactured it was possible to equip it with a deadman's control device which could have stopped the blade quickly enough after plaintiff fell from the mower to have avoided his injury.
Plaintiff's expert witness, Professor John Sevart, established that the most common intentional torque disturbance would follow the release of the mower's clutch and that unintentional torque disturbances would include interruption of fuel to the engine and the wheels' encountering a minor obstruction or a change of terrain. Professor Sevart also testified that the technology existed in 1967 to adapt then existing deadman control devices to the Snapper 265X so that it could have had a blade-stopping time of between one and two seconds after an operator became dislodged from the mower. ...