Appeal from the Circuit Court of Williamson County; the Hon.
Robert H. Howerton, Judge, presiding.
JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 11, 1985.
Sahara Coal Company (Sahara) and Caterpillar Tractor Company (Caterpillar) appeal a judgment entered in the circuit court of Williamson County. The action was brought by Gary Holmes (plaintiff) to recover for personal injuries. Plaintiff's action against Sahara was predicated on a theory of negligence. Plaintiff's action against Caterpillar was predicated on a theory of strict liability. Sahara filed a counterclaim for indemnity against Caterpillar, and Caterpillar filed an action for contribution against Sahara. Following a jury trial, judgment was entered in favor of plaintiff against Sahara in the amount of $183,000. Judgment was entered in favor of plaintiff against Caterpillar in the amount of $200,000. The jury returned a verdict in favor of Caterpillar on Sahara's action for indemnity. Sahara was found liable in contribution to Caterpillar, and judgment was entered in the amount of $120,000.
Plaintiff was employed as a field mechanic by Fabick Machinery Company. On November 20, 1978, plaintiff was sent to repair a Caterpillar model 637D tractor-scraper, owned by Sahara. After arriving at Sahara's mining site, plaintiff proceeded to the working area. Plaintiff was accompanied by Sahara employee Denzel Butler. The tractor-scraper in need of repair was operated by Deon Wallace. Upon being approached by plaintiff and Mr. Butler, Mr. Wallace turned off the machine and left the operator's compartment. Plaintiff proceeded to work on the tractor-scraper. After approximately 15 to 20 minutes, plaintiff requested that Mr. Wallace start the engine. As Mr. Wallace started the engine, a piece of metal (the bail) located at the front of the tractor-scraper rose and pinched plaintiff's leg against the bail cylinder.
The testimony at trial established that the bail is controlled by a lever which operates in three positions. When the engine is started with the lever in two of these positions (the "cushion ride-bail up" and "lock down-bail up" positions), the bail rises automatically. When the engine is started with the lever in the remaining position (the "lock down-bail down" position), the bail remains down. A decal above the bail lever warned that the lever should be placed in the "lock down-bail down" position when the machine was parked or being serviced, and that injury to persons working under the bail cylinder could result if the engine were started with the lever in the "bail up" position. Additional warnings and instructions were printed in the operator's manual. A decal in the operator's compartment directed the operator to read the manual and to lower all raised equipment before starting the engine.
Deon Wallace testified that he could not recall reading the warning decal near the bail lever prior to the accident, and that he had never read the operator's manual. Mr. Wallace knew, however, that the bail would rise automatically if the engine were started with the bail lever in any but the "lock down-bail down" position. Mr. Wallace testified that before starting the engine, he asked plaintiff "if all was clear," and that he thought plaintiff answered affirmatively.
Plaintiff testified that he was familiar with the model 637D tractor-scraper and knew that the bail lever would rise if the engine were started with the bail lever in the "bail up" or "cushion ride" positions. He stated that Deon Wallace said nothing before starting the engine at plaintiff's request, and that it had not been necessary to position his (plaintiff's) leg between the bail and bail cylinder in order to repair the machine.
Thomas Hrodey, a design engineer employed by Caterpillar, testified that an alternative design of the tractor-scraper would have prevented plaintiff's injury. The installation of a heavier spring in the bail operating mechanism, according to Mr. Hrodey, would have prevented the bail mechanism from rising. Mr. Hrodey estimated the cost of the spring at $25.
• 1, 2 Caterpillar alleges that the trial court erred in denying Caterpillar's motion for judgment notwithstanding the verdict. Caterpillar argues that the evidence established that the model 637D tractor-scraper was, as a matter of law, neither defective nor unreasonably dangerous in light of Caterpillar's warnings to the operator of the machine. The fact that a manufacturer supplies warning, however, does not mean that the warning is adequate to shift or reduce the risk inherent in a dangerous product. (Palmer v. Avco Distributing Corp. (1980), 82 Ill.2d 211, 221-22, 412 N.E.2d 959.) This determination is generally a question of fact for the jury. (82 Ill.2d 211, 221.) A warning may be found inadequate, for example, if it does not specify the risk presented by the product, if its size or print is too small or inappropriately placed, or if it is unlikely to reach foreseeable users of the product. (82 Ill.2d 211, 221-22.) In the instant case, the jury reasonably could have inferred that the decals in the operating compartment did not accurately specify the danger of starting the engine with the bail level in the "cushion ride-bail up" position, that the decals were of insufficient size, or even that the decals were inappropriately placed. The jury could also have inferred that the warnings in the operator's manual were inadequate to warn foreseeable users such as Deon Wallace. Judgment notwithstanding the verdict should be entered only where all the evidence viewed in the aspect most favorable to the opponent so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504.) The evidence did not so overwhelmingly favor the movant in the instant case.
• 3 Caterpillar alleges that the trial court erred in refusing Caterpillar's jury instruction No. 5 (as originally tendered) and in allowing Sahara's instruction No. 10. Caterpillar's original instruction No. 5 concerned the use of verdict forms with reference both to Caterpillar's claim for contribution against Sahara and to Sahara's claim for indemnity against Caterpillar. The court gave that portion of instruction No. 5 pertaining to Caterpillar's claim for contribution. In place of that portion of instruction No. 5 pertaining to Sahara's claim for indemnity, the court substituted Sahara's instruction No. 10. Sahara's instruction No. 10 (Illinois Pattern Jury Instructions, Civil, No. 500.24 (Supp. 1977)) contained the same language as that portion of Caterpillar's instruction No. 5 which the court refused. Caterpillar nevertheless argues that the separation of the instructions regarding contribution and indemnity served to confuse the jury. We find no support in the record for this assertion.
Caterpillar alleges that the court erred in admitting testimony of an accident occurring in 1974 as a result of a person's contact with a similar model tractor-scraper. Following Caterpillar's cross-examination of Fabick mechanic Bill Ollis, during which Ollis stated that he was unaware of any accidents similar to the one involving plaintiff, plaintiff's counsel was permitted to read into evidence a portion of the discovery deposition of Thomas Hrodey. The following questions and answers were read:
"Q: Do you know the reasons for the warnings contained in the decals to be placed on the machine identified as Exhibit 2 about which you have testified, what the reason for those warnings was?
A: There was another incident on a 657 size vehicle it happened prior to this accident of a mechanic getting pinched under the bail cylinder.
Q: What circumstances occurred? Was the bail in a down position and the engine started? ...