APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
GORDON, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Plaintiff, George Shelton, Jr., was injured when his new Chevrolet van ran over his leg. He had purchased the van from defendant Sunniday Chevrolet. The van was manufactured by defendant General Motors. Plaintiff brought this action in the circuit court of Cook County seeking damages for his injuries based on three theories: breach of warranty, strict liability, and negligence. The case went to trial and instructions were given to the jury encompassing the breach of warranty and strict liability claims. The trial court refused to give instructions on negligence. The jury returned a verdict in favor of defendants and the trial court entered judgment on this verdict.
On appeal, plaintiff contends: (1) the trial court erred in disallowing plaintiff to present evidence that the van had a defect in the gear linkage five years after the accident; (2) the trial court erred in refusing to give instructions on negligence; and (3) the trial court erred in excluding certain evidence on the issue of damages.
In 1974, plaintiff was the owner and operator of a coffee and donut delivery service. To perform this service, plaintiff used a van stocked with his merchandise. He would drive to several locations every day and sell his goods to employees at those locations. One of his regular stops was at defendant Sunniday Chevrolet.
On April 11, 1974, plaintiff purchased a new Chevrolet van from Sunniday. The van had an automatic transmission with the gearshift on the steering column. Before the van was sold to plaintiff, it was inspected by Sunniday and given a test drive to assure it operated properly and contained no defects. Sunniday discovered nothing wrong with the van except for a few minor problems which were corrected and are not involved in this case.
The plaintiff used the van in his business for the next two weeks after purchase. He testified that the van worked properly during this time except that the gearshift lever was stiff and more difficult than normal to shift and that the van idled a little too high. During this two-week interval, plaintiff did not complain to Sunniday about these problems because he assumed they existed merely because the van was new.
When plaintiff began his morning rounds on April 25, 1974, he discovered that the van was idling at an even higher rate than before. When he arrived at Sunniday to make his daily delivery of coffee and donuts, he told the service manager, whom he knew well, about the high idle. The service manager told him Sunniday could fix the problem but plaintiff would have to wait a few minutes for a mechanic. Plaintiff told the service manager he could not wait but that he would bring the van back in the afternoon. The service manager agreed to this.
Plaintiff continued on his rounds and eventually arrived at a Texaco station, one of his regular stops. He drove into the station and stopped the van on a slight incline and pushed the gearshift lever as "far as he could" to the left. He did not look to see if the indicator needle actually showed that the van was in park. He did not engage the emergency brake and left the engine running while he went inside the station to take orders for coffee and donuts.
Plaintiff was inside the station for approximately four minutes. When he returned to the van, he went to the side door to open it so he could get the coffee and donuts that had been ordered. He had to pull hard on the side door to get it to open. Upon doing so, he heard or felt a "clunk." The van started to move in reverse. He held on to the door and tried to get inside the van while it was moving. He failed to get inside, fell to the ground, and the van ran over his leg. The van continued on, traveled approximately 140 feet, ran up a 12- to 14-inch curb across the street, slammed into a utility pole, and sustained substantial damage to its rear body.
The above facts are undisputed. The basic dispute at trial was whether the gear linkage system or any other parts of the transmission or gearshift contained an ureasonably dangerous defect that caused the accident. The evidence presented on this issue was as follows.
Immediately after the incident, a police officer arrived on the scene (as did an ambulance in which plaintiff was taken to the hospital). The police officer testified at trial by way of an evidence deposition. He said that when he found the van against the utility pole, the engine was still running. The idle was very high and the van appeared to be jumping up and down in the rear, apparently because it was still running in reverse. The officer got into the van and noticed that the gearshift indicator needle was located between park and reverse. He pushed the gearshift into park. To do so, he had to slam the gearshift into position because it was difficult to move. However, once the indicator needle showed the van was in park, the van stayed in park.
Plaintiff was treated at the hospital and released the same day. A few days later, his leg began to swell and he eventually spent 11 days in the hospital. As a result of the accident, he still walks with a limp today.
The day after the accident plaintiff drove the van to Sunniday and told the service manager about the accident. He apparently told the service manager that he had parked the van and that it had somehow shifted into reverse and caused the accident. The service manager testified that several Sunniday employees and he tested the van to determine what might have caused the accident. With the engine running, the service manager put the gearshift in park and tried accelerating the engine while the other employees rocked the van back and forth to see if the van would jump out of park and into reverse. The van stayed in park. The service manager did not have any trouble shifting the ...