Vlahovich v. Betts MacHine Co. , 101 Ill. App. 2d 123 ( 1968 )

STOUDER, J.

This cause is before us on appeal from a judgment of the Circuit Court of Peoria County in favor of defendant, Betts Machine Co., following a verdict of the jury in favor of said defendant.

Plaintiff-Appellant, Thomas Vlahovich, was employed as a truck driver by F. S. Services. On January 11, 1962, he delivered a cargo to the Knox County Oil Company in Galesburg, Illinois. While checking the clearance lights on the trailer which he was driving, he noticed that the mid-clearance light on the right-hand side had a burned out bulb. He secured a ladder and climbed up to reach and change the light bulb. The temperature at that time was ten or twelve degrees below zero. He climbed up the ladder to a point where the light assembly was at eye level with him. He then inserted a screwdriver in the indentation provided therefore, pried and possibly twisted the screwdriver to remove the plastic lens. The lens shattered and a piece of the lens cut plaintiff’s eye. Plaintiff testified that he had changed the lens “lots of times” and that they had broken in the process about six times previously. He further testified that in the shop where the trucks were serviced, they often applied a soap-type mixture on the ring around the lens to make it easier to remove, such mixture being one which the mechanics used to clean their hands. He also stated that he had never applied any soap or lubricant while out on the road. Plaintiff also stated that he did not read the instructions supplied by defendant, Betts Machine Co.

A professor of civil engineering testified as an expert witness for the plaintiff. He had examined the lens which cracked. In testifying as to the tensile strength of the lens, he stated that, in his opinion, without any resistance to removal, the tensile strain created from the use of the screwdriver could cause a fracture of the lens. On cross-examination this expert testified, that assuming there was no violation of the instructions on removal “the lack of grease or difficulty in unseating the lens” was a contributing cause of the fracture. He also stated that the lens would more likely fracture at lower temperatures. He found no grease on the “o” ring around the lens.

Another truck driver testified without objection that he had experienced breakage of this type of lens almost every time he changed one of the lenses and, also, that on occasion a portion of the lens struck him in the face. A Mr. Cochran who was called as an additional witness for the plaintiff began to testify that he had removed lenses which broke and hit him in the face, but, after defendant’s objection to such testimony, the court refused to allow the witness to testify further.

In seeking to reverse the judgment of the trial court the plaintiff argues the court committed prejudicial and reversible error in instructing the jury and in excluding Cochran’s testimony.

The action in this cause was instituted by plaintiff under the theory of liability established by Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182. In that case, the court indicated that plaintiff must prove that (1) the injury or damage resulted from a condition of the product, (2) that the condition was an unreasonably dangerous one, and (3) that the condition existed at the time it left the manufacturer’s control.

The principal issue in this case is the application of the Suvada rule. It appears that there are few well defined paths through the thicket of “absolute liability in tort.” In predicating the liability of the manufacturer of a product upon condition and result the Suvada rule has made causation a pivotal issue of increased importance. Even before Suvada the subject of causation was not free from controversy.

Plaintiff’s instruction number eleven, which is the complete IPI 15.01 (defining proximate cause), was, over his objection, modified by the trial court. The instruction was modified by excluding the following part of the instruction “It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.” By excluding such part of the instruction the plaintiff argues the court committed prejudicial error.

The propriety of the instruction tendered and modified depends upon considerations relating to multiple causation. Our present theory of legal causation is embodied in IPI 15.01. Although the pattern instruction was not adopted for specific use in products liability cases or with such cases in mind it does represent generally the present standard of legal causation.

The evidence is sufficient to support four theories of causation, A, unreasonably dangerous condition of lens, B, failure to follow directions, C, maintenance of “o” ring and D, pressure exerted in removing lens. Under the Suvada rule cause A must be found to exist but it need not be the sole and only cause.

Both parties concede and the trial court agreed that negligence of the defendant was not the basis of defendant’s liability and hence negligence of the plaintiff (contributory negligence) was likewise not an issue. It follows accordingly to defendant, that possible causes B, C and D, the only other possible concurring causes, relate to contributory negligence and such not being a proper issue, the portion of the instruction relating to concurring causes was properly excluded. Although it might be said that cause C (improper maintenance of “o” ring) does not necessarily relate to the conduct of the plaintiff (contributory negligence) such distinction is of no particular significance in the broader context of the basic error in the instruction as given.

In the comments to IPI 15.01 the use of the full instruction is proscribed where only the conduct of the parties is involved because such use would prejudice the defense of contributory negligence. If defendant’s view be accepted, the use of the full instruction should be proscribed because of the opposite reason namely, absence of contributory negligence as an issue. Such paradox demonstrates the fallacy of defendant’s argument and underscores the essential weakness of the instruction as given. That plaintiff’s conduct, whether negligent or not, may be causally related to the injury is obvious. Indeed this was defendant’s principal contention at the trial. The evidence is sufficient to warrant the conclusion that the injury could have been caused by any of the possible causes A, B, C or D. Such conclusion ignores the equally valid conclusion that the injury could have been the result of possible cause A, acting concurrently and in combination with possible causes B, C and D or any one of them. The jury however was not instructed in this regard. It was not advised as to the effect of evidence of other possible causes or how such evidence should be considered in relation to the principal basis of liability, possible cause A. Under such circumstances the jury was prevented from considering a significant basis of liability and therefore the modification of the instruction constitutes prejudicial and reversible error.

We also believe the trial court erred in excluding the testimony of witness Cochran. One of the issues in this case was the unreasonably dangerous condition of defendant’s product, namely, the likelihood that the lens would shatter in the course of removal in order to replace a bulb. Evidence of similar occurrences or the lack thereof involving like instrumentalities or agencies under similar conditions is relevant and admissible in the determination of such issue. Bloomington v. Legg, 151 Ill 9, 37 NE 696.

Both plaintiff and Nevendorf, another truck driver, testified without objection, to the breakage of the Betts’ lenses on other occasions under similar conditions. In opposition to such testimony the defendant presented the testimony of witness Ryan, a Service Manager for the Fruehauf Trailer Company. He testified he was familiar with the Betts’ clearance lights, had never had any complaints with respect thereto and had never heard of any injuries resulting from lens breakage. Under such circumstances we find no basis in the record to support the trial court’s conclusion that Cochran’s testimony was immaterial.

For the foregoing reasons the judgment of the Circuit Court of Peoria County is reversed and remanded with directions that plaintiff be granted a new trial.

Judgment reversed and remanded with directions.

ALLOY, J., concurs in separate opinion.

SCHEINEMAN, J., dissents in separate opinion.