Appeal from the Circuit Court of Williamson County; the Hon.
Robert H. Howerton, Judge, presiding.
PRESIDING JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
Thomas L. Robertson, 25, an employee of the Peabody Coal Company, was killed at about 5:10 a.m. on May 14, 1974, as he replaced lug bolts on the wheel of a machine known as a Galis Model 3500 Twin-Boom Roof Drill. The accident report, filed by Charles E. Luxmore, a Federal coal mine inspector, and introduced as an exhibit at trial, stated that when the lug bolts were cut off, the wheel rim separated violently, striking Robertson in the chest, killing him instantly.
The wheels of the roof drill machine consisted of two halves held together by five retaining bolts. These retaining bolts held the split wheel assembly together. The wheels were designed to be secured to the hub of the axle on the machine by 10 lug bolts. A co-worker testified at trial that at the time of his death, Robertson was using a cutting torch to burn loose the lug bolts that hold the wheel to the hub. The Federal inspector noted in his report that three of the five retaining bolts were damaged and ineffective and this condition could not have been determined by visual inspection. The inspector concluded that failure to deflate the tire before removing the lug bolts and failure by management to instruct Robertson on safe procedures for removing retaining bolts from split rim wheel assemblies were the causes of the accident. He stated that the heat applied by the cutting torch increased air pressure in the tire, contributing to the violence of the separation of the wheel rim.
Kathy Robertson, administratrix of her husband's estate, brought a wrongful death action in the circuit court of Williamson County. The defendant, General Tire and Rubber Company, is the successor corporation to the original manufacturer of the machine. At trial, plaintiff's expert metallurgist testified that two and possibly three of the five retaining bolts had been partially fractured prior to the explosion. It was plaintiff's theory of the case that the existing cracks in the retaining bolts were a hidden defect, resulting from negligent design. Plaintiff further alleged, in an amended complaint, that the manufacturer had a duty to instruct Robertson to deflate the tire before removing the lug bolts and a duty to warn him of the danger if he failed to do so. Plaintiff's expert mechanical engineer testified that another available wheel design, a lock ring rim wheel, would have eliminated this design defect. Defendant's witnesses disagreed. The defendant argued that the accident was caused by Robertson in using the torch to cut the lug bolts off, increasing the air pressure with the heat and causing the tire to fail. After a jury trial, judgment was entered on November 10, 1981, in favor of the plaintiff in the amount of $500,000. Although the jury found in favor of the plaintiff on count II, the negligence count, the jury found in favor of the defendant on count I, the strict liability count. Defendant appeals, raising numerous contentions, which we will address in turn.
The defendant's first argument is that it was entitled to a directed verdict, or a judgment n.o.v., against the plaintiff, for three reasons. It asserts that evidence did not show a design defect in the roof bolter but merely bad maintenance; evidence did not show breach of a duty to instruct or warn since the deceased's employer knew about the danger involved; and the evidence did not show proximate cause because the deceased's improper maintenance of the machine made the explosion unforeseeable.
Directed verdicts and judgments n.o.v. are proper "only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." (Pedrick v. Peoria & Eastern R.R. Co. (1977), 37 Ill.2d 494, 509-10, 229 N.E.2d 504, 513.) Pedrick emphasizes that the parties have a right to have substantial factual disputes resolved by the jury. Pedrick v. Peoria & Eastern R.R. Co.; Sunseri v. Puccia (1981), 97 Ill. App.3d 488, 422 N.E.2d 925.
• 1 Applying the Pedrick standard, we hold that the defendant was not entitled to a directed verdict or a judgment n.o.v. Although the defendant mentions several aspects of the evidence which tend to support its theory of the case, this is not enough to satisfy the Pedrick test. The defendant discounts the value of much testimony in favor of the plaintiff, when the very existence of this testimony is reason for the case to go to the jury.
Evidence establishing a design defect included the testimony of George Forman, a professor of mechanical engineering at the University of Kansas. Professor Forman testified, in part:
"I believe the defect is that the design configuration, the arrangement of the design makes it possible to disassemble the wheel with the tire still inflated. There are designs that have been known for many years in which it is mandatory, necessary to deflate the tire prior to disassembling the wheel."
Professor Forman added that the wheel should have been designed so it was impossible to take the two halves of it apart without first deflating the tire. In the case at bar, he stated that it was foreseeable that the bolts would break. A wheel design known as a snap ring design was available when the machine in the case at bar was purchased. In such a wheel, a ring is held in place by air pressure and cannot be removed while the tire is inflated.
In addition, Professor Forman testified that labels or warnings should have been present on the machine, stating that air pressure must be released to avoid an accident. As the machine design existed, the similarity of the lug bolt configuration to an automobile wheel encouraged the workman to believe that he should remove the wheel as an automobile wheel is removed. The extensive testimony of this experienced mechanical engineer, along with all the other evidence presented by the plaintiff, provided enough evidence for the issue of the existence of a duty and the issue of foreseeability to go to the jury.
• 2 Defendant also asserts that the jury verdict was against the manifest weight of the evidence. We disagree. Evidence adduced at trial showed that two or three of the retaining bolts were deteriorated and ineffective, according to plaintiff's metallurgist. Defendant's plant manager testified there were no markings of any kind on the wheel or tire indicating how air was to be put into the tire. Professor Forman testified that the design allowing the wheel to be disassembled while the tire was still inflated was more dangerous than the snap ring design. He further testified that labels or warnings should have been present. The fact that the jury chose not to believe the defense theory that Robertson caused the accident by using the cutting torch does not mean the verdict was against the manifest weight of the evidence. A jury verdict may not be set aside merely because the jury could have drawn different inferences from the evidence. Parker v. De Witt County Housing Authority (1978), 57 Ill. App.3d 973, 373 N.E.2d 680.
Next the defendant contends that the jury's verdicts in its favor on the strict liability count and in favor of the plaintiff on the negligence count are so inconsistent as to require a new trial. The defendant reasons that the allegations of defect in each count are identical, therefore the jury's decisions are fatally inconsistent. The defendant's reasoning is not necessarily correct. In any case with alternate theories of liability, jury instructions are parallel to an extent. However, the instructions contain no restriction on the jury's power to choose either theory as a basis of liability. See generally Hasson v. Ford Motor Co. (1977), 19 Cal.3d 530, 564 P.2d 857, 138 Cal.Rptr. 705.
More important to the resolution of this issue is plaintiff's argument that the jury received incorrect instructions on the strict liability count. Defendant's ...