Siruta v. Hesston Corp. , 232 Kan. 654 ( 1983 )

The opinion of the court was delivered by

Prager, J.:

This is a products liability case in which the plaintiff, Don Siruta, lost his left arm in a Hesston hay baler. Plaintiff s theory of recovery was strict liability in tort. The primary issue in the case was whether the baler, manufactured by defendant Hesston Corporation, was dangerously defective. The jury applied principles of comparative fault and found that Siruta was 34% at fault and that defendant Hesston was 66% at fault. The jury found the plaintiff s damages to be in the total amount of $800,000. The district court entered judgment on the jury verdict in favor of the plaintiff and against the defendant in the amount of $528,000. The defendant appealed.

On the appeal, defendant raises fourteen points. Before turning to those points relating to claimed trial errors, we should first consider defendant’s challenge to the venue of the action in Ellis County. Defendant maintains that Ellis was not a county of proper venue and, hence, the judgment should be set aside. The facts relating to the venue issue were undisputed and are as follows: Defendant Hesston is a Kansas corporation with its principal administrative, engineering, and manufacturing offices in Harvey County. Defendant also maintains a business office in Johnson County. Plaintiff Siruta is a resident of Logan County. The accident occurred in Logan County and the baler involved in the accident had been purchased by the plaintiff s employer from a farm implement dealer in Logan County. Defendant Hesston does not maintain any branch office in Logan County. The defendant’s contacts with Ellis County are based on a sales and service agreement executed in 1969 between Rupp’s Inc., a farm implement dealer in Ellis County, and Hesston Corporation. The provisions of this agreement and the nature of Hess-ton’s activities in Ellis County will be discussed later.

We should first look at the Kansas statute which controls the venue of actions against defendant corporations. K.S.A. 60-604 provides:

“60-604. Actions against corporations. An action against a domestic corporation, or against a foreign corporation which is qualified to do business in this state, other than an action for which venue is otherwise specifically prescribed by law, may be brought in the county,

“(1) in which its registered office is located, or

“(2) in which the cause of action arose, or

“(3) in which the defendant is transacting business at the time of the filing of the petition, or

“(4) in which there is located tangible personal property which is the subject of an action for the possession thereof if immediate possession is sought in accordance with K.S.A. 60-1005 at the time of the filing of the action.”

The plaintiff brought this action in Ellis County on the basis of paragraph (3) — that the defendant was “transacting business at the time of the filing of the petition.” Simply stated, the defendant maintains that the defendant was not transacting business in Ellis County at the time of the filing of the petition within the meaning of the statutory language. The issue presented is one that has not been determined by the Kansas appellate courts. In interpreting the questioned statutory language, it would be helpful to consider the previous Kansas statute on venue and pertinent decisions of Kansas and federal courts.

Prior to the adoption of the Kansas Code of Civil Procedure effective January 1, 1964, the venue of actions against domestic corporations was governed by G.S. 1949, 60-504 which provided as follows:

“60-504. Action against domestic corporation. An action, other than one of those mentioned in the first three sections of this article, against a corporation created by the laws of this state or of the territory of Kansas, may be brought in the county in which it is situated, or has its principal office or place of business, or in which any of the principal officers thereof may reside, or may be summoned; but if such corporation be an insurance company, the action may be brought in the county where the cause of action, or some part thereof, arose, or where the plaintiff resides. But the provisions of this article shall not apply in the case of any corporation created by a law of this state or the territory of Kansas whose charter prescribes the place where alone a suit against such corporation may be brought.” (Emphasis supplied.)

It should be noted that under G.S. 1949, 60-504 a domestic corporation had to be sued in the county in which it had its principal office or place of business or in which any of its principal officers may reside or may be summoned. There was no provision for suing a domestic corporation in any county in Kansas where it was transacting business.

G.S. 1949, 60-2518 provided for the serving of summons against a corporation in the following language:

“A summons against a corporation may be served upon the president, resident agent, mayor, chairman of the board of directors, or trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having charge thereof, or by the delivery of a copy at the registered office of the corporation, or to the registered agent of the corporation.”

The issue has arisen and been determined whether under the two statutes cited above a domestic corporation could be sued in a county other than where its principal office was located. In McLeod v. Trusler Grain Co., 127 Kan. 119, 272 Pac. 119 (1928), the defendant corporation’s principal place of business was Lyon County, but it had a branch office in Shawnee County. The action was filed in Shawnee County and service was made on the local manager in Shawnee County. The defendant challenged the venue in Shawnee County. The court, in McLeod, construed the statutes together and concluded that where a domestic corporation maintains an office in several counties in the state and where it transacts business in several counties where it has a local office, an action could be brought in any such county and it was not necessary for the suit to be brought in the county where its principal office was located. A similar result was reached in Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 22 P.2d 965 (1933).

In 1948, the Congress of the United States enacted what is now 28 U.S.C. § 1391 (1976) which provides in section (c):

“A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.” (Emphasis supplied.)

In a number of cases a controversy has arisen as to the meaning of the words “is doing business” and the sufficiency of the evidence to support venue under § 1391(c).

The federal courts have consistently held that, whether a corporation “is doing business” in a particular district for venue purposes is essentially a question of fact. See for example Frazier, III v. Alabama Motor Club, Inc., 349 F.2d 456, 459 (5th Cir. 1965). In Frazier, the opinion discusses the factors to be considered and applied in determining whether a corporation “is doing business” in a district and concludes:

“There is no exact formula under which the question can be decided. To reach the proper answer, consideration must be given to such relevant factors as the general character of the corporation, the nature and scope of its business operations, the extent of the authorized corporate activities conducted on its behalf within the forum district, the continuity of those activities, and its contacts within the district.”

The cases generally agree that more than a single or casual transaction is required before the corporation will be considered as “doing business” in the district. 15 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3811 (1976).

Similar language is used in the venue sections of the Clayton Act, 15 U.S.C. § 22, which provides, in substance, that an action under the anti-trust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district “wherein it may be found, or transacts business.” There is a comprehensive annotation on the interpretation of this language in 3 A.L.R. Fed. 120. In interpreting the various federal cases on the subject, the author of the annotation concludes that the test of whether a corporation transacts sufficient business within a district to establish venue therein is generally stated as being a practical, everyday question without artificial technicalities. The only requirement is that the business must be “substantial,” and even this is based, to a large extent, upon what an ordinary businessman would think if given the facts and asked if he thought the company in question was engaged in transacting business. The requirement is usually made that the activities must be continuous, as opposed to isolated, or sporadic occurrences. In those cases where venue is based upon the activities of a local distributor of the corporation’s products, a significant factor is the nature of the control exercised over the latter by the former. See for example Jeffrey-Nichols Motor Co. v. Hupp Motor Car Corporation, 46 F.2d 623 (1st Cir. 1931).

In the early sixties, the Kansas Judicial Council undertook a revision of the Kansas Code of Civil Procedure. A new code was developed based, in part, on the federal procedures. The Judicial Council and the Kansas legislature undoubtedly relied in part on the federal venue statutes discussed above in formulating K.S.A. 60-604. The only Kansas case interpreting the language “transacting business” in K.S.A. 60-604 is Sterling v. Marathon Oil Co., 223 Kan. 686, 576 P.2d 635 (1978). In Sterling, defendant Marathon Oil Company’s only connection with Rice County was as owner of working interests in two oil leases operated by Phillips Petroleum Company. Marathon owned a 37.5% working interest in the two Rice County oil leases. The operating agreement between Marathon and Phillips gave Marathon certain rights in the operation and development of the leases. The consent of Marathon was required under certain conditions for the drilling, reworking, plugging back of deepening of wells, and for expenditures by Phillips in excess of $10,000. The Supreme Court agreed with the trial court that Marathon was doing business in Rice County and that, under K.S.A. 60-604, Rice County had venue of the case.

We have concluded that the federal decisions have adopted a logical approach in determining federal venue, and that the courts of Kansas should take a similar position in determining whether a corporation is transacting business in a particular county for venue purposes within the meaning of K.S.A. 60-604. Whether a corporation is transacting business in a particular county at the time of the filing of the petition is essentially a question of fact. There is no exact formula under which the question can be decided. Venue must be determined on a case-by-case basis and consideration should be given to such relevant factors as (1) the nature and scope of the corporation’s business operations, (2) the extent of the activities conducted on its behalf within the county, (3) the continuity of those activities, and (4) its contacts within the district. Where venue is based solely upon the activities of the corporation’s local dealer or distributor, the important consideration is the amount of control exercised by the corporation over the dealer or distributor.

Turning to the factual circumstances in the case now before us, we have concluded that defendant Hesston was transacting business in Ellis County at the time of the filing of the petition so as to authorize venue in Ellis County under K.S.A. 60-604(3). Defendant, as a manufacturer of hay balers, does not have retail outlets. It markets its products wholesale and retail through so-called independent dealers, such as the Rupp Company in Ellis County. The sales and service agreement between Hesston and its independent dealers, including that with the Rupp Company in this case, give to Hesston substantial control over the dealer’s operation. Under the agreement with Rupp Company in this case, Hesston provides financing through the Fiat Corporation which, at the time of the accident and at the time the petition was filed, owned the controlling interest in Hesston. Hesston provides cash discounts, dealer bonuses, and incentive payments to Rupp’s salesmen. Hesston provides interest waiver periods to customers in Ellis County, plus a “buyer bonus bonanza payment” directly from Hesston to the dealer’s customer. There is Hesston-owned machinery located on the Rupp lot, financed to Rupp under arrangements with Fiat. A service representative of Hesston visits Rupp twice monthly to investigate complaints and provide service for new and used Hesston equipment. Among other things, Rupp is required to furnish to Hesston, when requested, a full and complete financial operating statement. Rupp is required to use the defendant’s sales promotion program, to identify its store with Hesston’s decals, to maintain Hesston price books, to maintain a properly equipped repair shop and parts stock sufficient to give prompt service to owners of Hesston products. We have considered all of these circumstances and concluded that defendant Hesston Corporation was “transacting business” in Ellis County at the time of the filing of plaintiff s petition and that Ellis County was a proper county for venue within the meaning of K.S.A. 60-604(3).

The other thirteen points raised by defendant Hesston on the appeal involve five general areas of contest including (1) the sufficiency of the evidence to take plaintiff s case to the jury, (2) error in the admission of evidence, (3) error in the instructions, (4) excessiveness of the damages awarded, and (5) misconduct of the jury. Some of these thirteen points overlap. To prevent unduly prolonging the opinion, we shall discuss some of them together. We fill first determine the issues pertaining to the sufficiency of the evidence to establish liability of Hesston under plaintiffs theory that the Hesston round baler was dangerously defective on the basis of strict liability in tort. To determine this issue, it is necessary to summarize the evidence presented by the plaintiff.

In support of the plaintiff s theory that the Hesston baler was defective, plaintiff presented evidence as to safety problems inherent in the operation of round hay balers. Plaintiff introduced, as an exhibit, a paper on the subject of “Big Round Rales — Anatomy of a Safety Problem” which had been presented at the 1977 meeting of the American Society of Agricultural Engineers. The article, in substance, points out the accidents experienced with round balers resulting in traumatic amputations of hands or arms, if not death. The National Safety Council became aware of safety problems with round hay balers toward the end of the 1974 harvest season. The article emphasizes the danger of many “nip points,” where belts and rollers are used in round baler design. Accident countermeasures were developed which emphasize the necessity of placing guards or shields at strategic points in order to prevent injury. Also stressed was the importance of labeling instructions and warnings to alert operators of the hazards of such balers.

The plaintiff followed up this evidence on the general safety problem by introducing specific industry standards for hay balers. Included among these standards were the standards for safety issued by the Occupational Safety and Health Administration (OSHA) and standards adopted by the American Society of Agricultural Engineers (ASAE) pertaining to safety in agricultural equipment, including balers. These standards emphasize the importance of guarding so-called “nip points” in machinery containing power driven gears, belts, chains, sheaves, pulleys, sprockets, and idlers. The standards require the installation and use of a guard or shield to prevent operators from being injured in the operation of the equipment. A “guard” or “shield” is a barrier designed to protect against employee contact with a hazard created by a moving machinery part. Summarizing the safety standards, it is recommended that “nip points” be shielded by either (1) location or (2) guards or shields or, (3) if these are not possible, by warnings to the operator. Stated simply, plaintiff presented evidence to establish the safety standards of the industry and then proceeded to present evidence indicating that those standards had not been complied with in the design of the Hesston round hay baler involved in this case. The plaintiff presented evidence indicating that the baler was defective, not only because of lack of a guard or shield, but also because of weak belts and inadequate warning devices.

The only witness to the accident was the plaintiff himself. Plaintiff, Don Siruta, was an experienced farmer. He had worked at the Keller ranch for many years. On the day of the accident November 12, 1979, he was baling Sudex cane southwest of Russell Springs. The baler quit baling when a bale being made was half built. In its unfinished condition, it weighed between 500 to 700 pounds. Plaintiff turned off the tractor and shut everything down. He then alighted from the tractor and checked the tailgate. Everything seemed to be in position, just like it was when the baler was purchased. He then turned on the equipment, alighted from the tractor, walked back to the left side of the baler, and stood approximately three feet away from the belts. He was 18” to two feet from the power take-off, which was housed. The plaintiff looked toward the belts to see whether or not they were slipping. He could see the rollers turning; the belts were not turning but were slipping. The belts seemed to be under tension. The next thing he knew he felt like something hit his back and he felt himself being jerked into the machine. He was positive that he never touched with either hand the roller arm or belt of the baler or any attachment to the baler. From his testimony, it could reasonably be inferred that the belt on the left side broke, came out of the machine, struck plaintiff, and pulled him into the machine. It all happened so fast that plaintiff could not remember exactly how it happened but that is his recollection. Following the accident, plaintiff s hand and left arm were found wrapped in the left belt of the machine. The belt had broken apart at the point where the two ends were spliced together. The entire belt was wrapped around plaintiff s hand and arm inside the baler and pieces of flesh were found at the point where the splice had broken. It is important to note that plaintiff s hand and arm were not found at that point in the baler where the Sudex cane enters the baler to become part of the bale.

The plaintiff called as an expert witness, Gary Robinson, a safety consultant. He was a graduate of Michigan State University, served two years as safety engineer for insurance companies, during which period he investigated accidents and made safety recommendations in the area of machinery and machine guards. He was employed as assistant safety engineer for Pontiac Motors. His specific duties with Pontiac involved working with the guarding of machines, designing safety standards, investigating accidents, and making recommendations as to guarding systems for safety purposes. He later became safety director for Pontiac which entailed the supervision of twelve or thirteen persons working as safety engineers. He took part in the writing of safety standards. He examined machines to see if guards met the standards, and if they did not, worked with the engineering department to see that the machines were redesigned. He worked under contract with OS HA and other federal agencies in the writing of federal standards and assisted in the training of OSH A compliance officers. He identified the OS HA standards and the standards of the American Society of Agricultural Engineers and of the American National Standards Institute, all pertaining to safety standards relating to equipment which is power driven by belts. He was employed by the plaintiff to examine the machine for safety defects. He testified that what makes a machine unreasonably defective from a safety standpoint is whether or not a hazard could have been eliminated or avoided or whether or not a guard or shield could have been placed on the machine to reduce the hazard. If a hazard could be eliminated from such a machine by such a design change, the machine is defective. Simply stated, his testimony was that a machine is defective if some type of accident preventive design system or guard could have been designed in the machine and was not. If a guard or shield is not feasible, then an adequate warning device is required.

Plaintiff s expert witness reviewed the testimony of plaintiff Siruta as to his being struck by a belt and pulled into the machine, the fact that the belt on the far left side was broken, and the fact that plaintiff s arm was found wrapped in the belt. It was his opinion that, if the baler had been guarded in the area of the belts by a properly designed guard, plaintiff s hand would not have gone into the rollers and the accident would not have happened. For that reason, it was his opinion that the baler was defective. Robinson testified that it would have been a simple procedure to attach a guard at that location in accordance with the established standards. The plaintiff also introduced other evidence which will be discussed under specific points of error raised by the defendant.

It must be emphasized that the evidence in the case was highly conflicting. The case was well tried by able counsel and the issues of both liability and damages were hotly contested. The exhibits presented by both sides are voluminous. Defendant’s experts testified that the belt could not have come out of the machine and caused the accident in accordance with plaintiff s theory. Simply stated, it was defendant’s theory that the plaintiff grabbed the slipping belt, the belt suddenly began to revolve, and plaintiff s hand was thereby pulled into the machine. In the course of the trial, the defendant Hesston filed appropriate motions for directed verdict and for judgment notwithstanding the verdict. Each of these motions challenged the sufficiency of plaintiff s evidence to go to the jury. The trial court held that the evidence was sufficient and that the issue of liability was one of fact for the jury to determine. From a thorough reading of the record in the case, we have concluded that the evidence, although conflicting, presented a proper case for the jury. As to the sufficiency of the belts, it was undisputed that the belt had broken at the splice. The expert witnesses had different opinions as to why the belt broke. The style of the belt and lacing were later changed and a wider belt was used on other balers. The plaintiff s evidence indicated that it was foreseeable that belts on balers wear and break and that it is feasible to install guards which will not destroy the machine’s function. Defendant’s evidence indicated to the contrary.

In regard to the warning decal on the baler, Gordon McDaniel, an employee of the defendant, testified he served as chairman of Hesston’s safety committee which reviewed the decal warnings on the balers and that, before the baler involved in this accident was produced, he recommended that the existing decal should be changed to a more graphic type of decal to alert operators as to the dangers involved.

The defendant maintained that, as a matter of law, the baler was not defective because the danger was open, obvious, and patent. The substance of this argument is that the plaintiff himself was responsible for the accident because the danger of the exposed belts was obvious. We disagree with the defendant in this regard. Simply because the hazard on a piece of equipment is open and obvious does not prevent it from being dangerous to the operator or consumer. The fact that the danger is patent and obvious may be an important factor in determining whether plaintiff s fault contributed to his own injury. Here the trial court submitted the issue of plaintiffs fault to the jury and the jury by its verdict found the plaintiff to be 34% at fault. However, such a finding of some percentage of fault on the part of the plaintiff did not preclude the jury from finding that the defendant was 66% at fault in failing to take reasonable steps to guard the “nip points” in the machine to prevent injury to the operator.

Defendant’s contention that the undisputed “physical facts” do not support plaintiffs theory lacks merit in view of the conflict in' the evidence noted above. The so-called “physical facts rule” should be applied only where the evidence on which plaintiff relies is clearly contrary to some immutable law of physics or is hopelessly in conflict with one or more established and uncontroverted physical facts. See Kansas Public Service Co. v. Shephard, 184 F.2d 945 (10th Cir. 1950). Such is not the case here. The plaintiffs expert testified that the defendant could have placed a guard in front of the belts on the left side which would have prevented the plaintiff s hand from going into the rollers, and, thus, there was sufficient evidence for the jury to find the defendant at fault even if the belt did not come out. Considering all of the evidence in the case, we have concluded that the evidence was sufficient to go to the jury and that the trial court did not err in overruling defendant’s motions for a directed verdict and for judgment notwithstanding the verdict.

The defendant’s next point on the appeal is that the trial court erred in permitting plaintiff s expert witness, Robinson, to testify on the issue of defectiveness and causality. The qualifications of Robinson as an expert witness are set forth above. We have no hesitancy whatsoever in holding that the trial court did not err in ruling that he was a qualified expert in the field of safety standards' for hay balers. Robinson examined the machine in question and considered the testimony of plaintiff. The testimony of plaintiff as set forth ábove provided a sufficient basis for Robinson’s opinion that the baler was defective because a belt was able to come outside the baler and cause Siruta, the operator, to be pulled inside the machine.

In Pape v. Kansas Power & Light Co., 231 Kan. 441, 445, 647 P.2d 320 (1982), the admissibility of an expert’s opinion on an ultimate issue of fact in the case was discussed by the court. In Pape, we noted that K.S.A. 60-456 provides that testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact. We held that expert opinion testimony is admissible if it will be of special help to the jury on technical subjects as to which the jury is not familiar, if such testimony will assist the jury in arriving at a reasonable factual conclusion from the evidence. The rule of Pape is applicable in this case. Laymen serving on Kansas juries seldom have any special knowledge about the mechanical operation of hay balers. The whole subject is rather technical. Here it was appropriate for both the injured plaintiff and the defendant manufacturer to call expert witnesses to assist the jury in determining whether or not the hay baler in this case was defective. We find no error in the trial court’s permitting plaintiff s expert witness, Robinson, and the other experts provided by the defendant to testify on the issues of the defectiveness of the baler and its causal connection with plaintiffs injuries.

The defendant next maintains that the trial court erred when it permitted plaintiff s counsel to cross-examine defendant’s expert witness, Dr. Clark, about subsequent changes in design of Hesston hay balers where a guard was installed on later balers to protect the operator from the moving belts. Simply stated, it is the position of defendant that evidence of design changes and the installation of guards or shields on Hesston balers manufactured after the accident in this case constituted evidence of subsequent remedial or precautionary measures and was inadmissible under K.S.A. 60-451 which provides as follows:

“60-451. Subsequent remedial conduct. When after the occurrence of an event remedial or precautionary measures are taken, which, if taken previously would have tended to make the event less likely to occur, evidence of such subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.”

Prior to the examination of the jury panel in this case, the defendant filed a motion in limine which requested a ruling from the court to instruct plaintiff s counsel to refrain from mentioning directly or indirectly any changes in the model of the machine subsequent to manufacture of the machine in question. The trial court sustained the motion in limine until such time as plaintiff s counsel could show a causal connection to the way the accident happened and that changes later made could have prevented the accident. Thus, plaintiff was precluded from submitting evidence of subsequent design changes in his case in chief. In plaintiffs case in chief, his expert witness, Gary Robinson, testified as to the industry standards providing for the guarding of “nip points” in baler equipment where there are moving belts. Robinson testified that the round baler was defective because there was no guard to reduce the risk of belts breaking and flying out and that an appropriate guard on the front of the belt was feasible and would not have impaired the function of the baler. The court ruled that the plaintiff could not go into subsequent design changes with this witness. Robinson then testified that had the baler involved in this case been guarded in the area of the belts, the accident would not have occurred. It was not until defendant called its own expert, Professor Clark, that evidence of the subsequent design changes was admitted by the trial court. Professor Clark testified, in substance, that the proposed guard or shield suggested by Gary Robinson was not feasible. On cross-examination, plaintiff then interrogated Professor Clark about subsequent design changes in Hesston balers manufactured after the accident occurred in this case.

The question of whether evidence of subsequent design changes is admissible in products liability cases is one on which there is a marked difference of opinion throughout the country. There is a comprehensive annotation on the subject in 74 A.L.R.3d 1001 where cases supporting the different points of view are set forth. It is clear that, where the theory of plaintiff s action is negligence, the cases generally exclude subsequent precautions or repairs as proof of negligence or an admission thereof. In cases where plaintiffs theory is not based upon negligence, but rather on strict liability in tort, some of the cases hold that- the public policy behind the rule which excludes evidence of remedial or precautionary measures does not apply in products liability cases. The leading case which takes this position is Ault v. International Harvester Co., 13 Cal. 3d 113, 117 Cal. Rptr. 812, 528 P.2d 1148 (1974).

A number of cases exclude evidence of subsequent design changes when offered for the purpose of showing negligence, but hold that evidence of subsequent design changes is admissible for the purpose of showing the feasibility of an alternative design. Some courts have held that evidence of repairs may also be admissible for impeachment purposes where the defendant introduced evidence that prior precautionary measures taken in connection with the design of the product have been adequate.

In products liability cases, the plaintiff in sustaining its burden to prove that a product is defectively designed may properly show the feasibility of a safer design. See Garst v. General Motors Corporation, 207 Kan. 2, 484 P.2d 47 (1971). Logically, when defendant manufacturer’s experts have testified that a particular design change is not feasible, it would seem that evidence of the incorporation of plaintiff s suggested design change in a later product of the defendant manufacturer would be highly relevant and admissible to prove its feasibility. In other words, in the field of products liability the rule excluding evidence of subsequent modifications has not been applied where such evidence is offered to show the technological or economic feasibility of alternative designs which would have prevented the injury. That is exactly the situation which we have in the case presently before us. The trial court refused to allow the plaintiff to admit evidence of subsequent design changes until the testimony of defendant manufacturer’s expert had raised the issue as to the technological or economic feasibility of the design change suggested by plaintiff s expert.

As noted above, plaintiff s expert, Robinson, testified that a guard could easily have been incorporated into the design of the baler which would have protected the plaintiff from injury. The defendant’s expert Clark testified that such a design was not feasible. Under the circumstances, the trial court did not err in admitting evidence of the defendant Hesston’s subsequent design changes which incorporated a guard similar to the one suggested by plaintiff s expert, Robinson.

This result is consistent with our holding in Huxol v. Nickell, 205 Kan. 718, 473 P.2d 90 (1970), which holds that although K.S.A. 60-451 excludes evidence of remedial or precautionary measures taken by defendant after an accident for the purpose of proving defendant’s negligence, it does not prohibit such evidence when relevant to prove other matters involved in the case. See also Schmeck v. City of Shawnee, 232 Kan. 11, 652 P.2d 585 (1982). We hold that where evidence of remedial or precautionary measures is not offered to prove negligence or culpable conduct, it is admissible when offered for other relevant purposes such as the feasibility of a design change in a products liability case.

The defendant next complains that a new trial should have been granted because the trial court erroneously admitted evidence concerning the defendant’s graphic decal. Gordon McDaniel, defendant’s engineer-manager, testified in regard to his recommendation that the safety decal on the baler be more explicit. This recommendation was made prior to the manufacture of the baler involved in this case. We hold that this evidence was admissible on the question of the sufficiency of the warning placed on the baler by the manufacturer and find no error on this point.

The defendant next challenges the instructions. We note that the trial court gave, in substance, PIK Civ. 2d 13.21, 13.22, and 13.23,- which are the basic instructions suggested for products liability cases. Under the factual circumstances in this case, we find that these instructions were sufficient and adequately covered the responsibility and duties of the plaintiff and the manufacturer defendant. The instructions requested by the defendant differed only in form from the instructions given. Under the circumstances, we cannot say that the trial court erred in its instructions.

It is next contended by the defendant that the damages were excessive as a matter of law. This issue was presented to the trial court which found that the verdict by the jury in the total amount of $800,000 for the loss of a middle-aged farm laborer’s arm was not so excessive as to shock the conscience of the court. We cannot say that the trial court erred in this regard. Our collective consciences are not shocked by the amount of the jury’s award.

The defendant’s last point is that the trial court abused its discretion by refusing to recall for examination members of the jury in order to determine whether misconduct occurred. A number of affidavits were presented by counsel for both parties. Defendant’s counsel contended, in substance, that the jury arrived at the percentage of comparative fault on the basis of a quotient verdict. The affidavits of the jurors presented by counsel do not support defendant’s position. Although the jurors averaged the percentage of fault obtained from each one of the jurors, none of the affidavits of the individual jurors show that the jurors agreed in advance to be bound by the average, whatever it might be. We hold that the trial court did not abuse its discretion in refusing to permit counsel to call to the stand the members of the jury to determine whether they arrived at a quotient verdict.

The judgment of the district court is affirmed.

Fromme, J., not participating.