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09/11/87 Dolores Barth, Adm'r of v. Ional Harvester Company

September 11, 1987





513 N.E.2d 1088, 160 Ill. App. 3d 1072, 112 Ill. Dec. 479 1987.IL.1323

Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Cawley, Judge, presiding.


JUSTICE PINCHAM delivered the opinion of the court. SULLIVAN, P.J., and LINN, J., concur.


Plaintiff, administrator of her deceased husband's estate, brought an action on his behalf against defendants, Crete Township and International Harvester, for injuries the deceased sustained when the International Harvester tractor he was driving on a Crete Township roadway turned over. During jury deliberations Crete Township paid plaintiff a sum of money in settlement of plaintiff's claim against it. Subsequently, the jury returned a $2 million verdict in favor of plaintiff and against Crete Township. The jury also returned a verdict against plaintiff and in favor of International Harvester. Plaintiff appeals from the judgment entered on the verdict for International Harvester.

On appeal, plaintiff contends that the trial court erred in admitting into evidence and allowing the jury to view a videotape which demonstrated the tractor's turning capabilities, and that the trial court abused its discretion when it refused to allow into evidence photographs of a cab-enclosed tractor which plaintiff had taken from the 1941 edition of Prairie Farmer Magazine.

On September 25, 1976, Richard Barth was seriously injured when the tractor manufactured by the defendant, International Harvester, and driven by Barth overturned. The tractor was a Farmall M International Harvester tractor which Barth had been using to bale hay. At approximately 9 p.m., Barth drove the tractor from the field and proceeded north on State Line Road, a two-lane gravel road located in Crete Township, Illinois. Barth's tractor speed was estimated to be between five and eight miles per hour. When Barth reached the intersection of State Line and Bemis Road, he made a left turn onto Bemis Road and proceeded west. The two neighbors who had been baling hay with Barth and were following him testified that they saw Barth complete his left turn onto Bemis Road. They could not see Barth, however, after he made the turn and as he proceeded west on Bemis Road. When the neighbors completed their left turn off of State Line Road west onto Bemis Road, they saw Barth's tractor approximately 70 feet west of the intersection, lying on its right side, on the south side of Bemis Road. The tractor was headed in a southwesterly direction, with the front section partially up the embankment on the far south side of a ditch. The front end of the tractor had broken through a fence at the top of the embankment. The right rear wheel was in the ditch and Barth's legs were pinned underneath the tractor. Barth suffered serious head injuries as a result of the accident.

At the time of the accident, Bemis Road was a two-lane blacktop road of chipped gravel and tar. Numerous witnesses testified that at the time of the accident Bemis Road was in serious disrepair, with deep ruts and many large potholes.

The Farmall M tractor was manufactured by International Harvester in December 1941 and purchased by Barth in June 1979. The tractor was built similar to a tricycle, with two small wheels close together in the front center and two large wheels on each side of the tractor at the rear. This construction design allowed the tractor to run between crop rows. The width between the rear wheels could be adjusted to accommodate different spacing between the crop rows. The tractor's rear wheels were set 77 1/2 inches apart at the time of the accident.

The tricycle design was introduced in 1924 and was thereafter adopted by all tractor manufacturers. The tractor had 36 horsepower and weighed approximately 4,700 pounds. It had a 20- to 24-inch clearance under each axle and was designed to be used with other farm implements, such as mounted corn pickers and cultivators.

Plaintiff called David MacCullom, a consulting safety engineer, and Dr. Wyman Johnston, an associate professor of engineering at Texas A & M University, as expert witnesses in support of his claim that International Harvester had been negligent in the design and manufacture of the Farmall M tractor. Both witnesses testified that the Farmall M tractor had a propensity to overturn while turning corners at normal speed. On cross-examination Dr. Johnston conceded that the tractor went approximately 70 feet west on Bemis Road before the tractor turned over.

Plaintiff's experts further testified that International Harvester was negligent in failing to equip the tractor with a rollover protection structure. It was agreed by the parties, however, that no company in the farm tractor manufacturing industry developed a rollover protection structure until the 1960s. Plaintiff's experts further agreed that a rollover protection structure would not have prevented plaintiff's turnover.

Finally, plaintiff's experts stated that International Harvester was negligent in failing to warn of the danger of the tractor's propensity to rollover, despite the fact that the operator's manual for the Farmall M tractor advised tractor operators to reduce their speed prior to making a turn or applying the brakes. There was also a yellow decal on the ...

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