American Optical Co. v. Weidenhamer

• Decision Date: 23 April 1980
• Docket Number: No. 2-1276A462,2-1276A462
• Citation: 404 N.E.2d 606
• Parties: AMERICAN OPTICAL COMPANY, U. S. Safety Service Company and Warner Lambert Co., Appellants (Defendants Below), v. Chris M. WEIDENHAMER, Appellee (Plaintiff Below), and International Harvester Company, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 606

404 N.E.2d 606

27 A.L.R.4th 781

AMERICAN OPTICAL COMPANY, U. S. Safety Service Company and Warner Lambert Co., Appellants (Defendants Below), v. Chris M. WEIDENHAMER, Appellee (Plaintiff Below), and International Harvester Company, Appellee (Defendant Below).

No. 2-1276A462.

Court of Appeals of Indiana, Fourth District.

April 23, 1980.

John M. Clifton, Jr., Barrett, Barrett & McNagny, Fort Wayne, for appellants American Optical Co. and Warner Lambert Co.

Carl J. Suedhoff, Jr., Hunt, Suedhoff, Borror, Eilbacher & Lee, Fort Wayne, for appellant U. S. Safety Service Co.

Stephen L. Williams, Sherrill Wm. Colvin, Snouffer, Haller & Colvin, Fort Wayne, for appellee Chris M. Weidenhamer.

Milford M. Miller, Fort Wayne, for appellee International Harvester Co.

MILLER, Presiding Judge.

Plaintiff-appellee Chris M. Weidenhamer, a lathe operator employed at International Harvester (Harvester) was injured when an object struck his safety glasses, causing the right lens to shatter. He brought an action against the Defendants-Appellants American Optical Company, a division of Warner Lambert Company (American Optical) and U.S. Safety Service Company (U.S. Safety) alleging one or the other manufactured the alleged defective lens. His complaint was based on negligence, breach of implied warranty of merchantability and fitness for a particular purpose, breach of express warranty and strict liability in tort. Harvester was joined as a defendant but was granted a directed verdict at the close of Weidenhamer's evidence pursuant to Indiana Rules of Procedure, Trial Rule 50. The correctness of granting Harvester's motion is not challenged and is not an issue in this appeal. The cause was submitted to the jury on all four theories of recovery and a general verdict returned against both American Optical and U.S. Safety in the amount of $57,724.41.

We affirm the jury verdict as to American Optical but reverse as to U.S. Safety and direct the trial court to enter judgment in U.S. Safety's favor.

American Optical claims numerous alleged errors were committed involving the sufficiency of the evidence and the giving and refusal of instructions. U.S. Safety also raises numerous alleged errors but, since we agree the trial court erroneously denied its motion for judgment on the evidence at the close of all the evidence, we need not discuss its other alleged errors.

On September 26, 1972 Weidenhamer, while wearing his safety glasses, was operating a lathe as a routine part of his job at Harvester when something struck his safety glasses causing his right lens to shatter. Glass cut through his right upper eyelid and also cut his cornea and iris.

There were no eyewitnesses to the accident; Weidenhamer did not know how it occurred or what struck him in the eye. Weidenhamer testified he was performing his job correctly and was unaware of any malfunction in the lathe. However, a document entitled "Agreement Between Employee and Employer as to Compensation" filed with the Industrial Board of Indiana was introduced into evidence by Harvester. The document, which was signed by Weidenhamer on October 13, 1972, stated the accident occurred because Weidenhamer "positioned a differential carrier in a lathe with a hoist. As he reached to engage the chuck, he hit the spindle jog button causing the spindle to revolve which in turn jerked the hoist hook loose. The hook struck him in the right eye." This information was taken from the "Supervisor's Accident Report" which was filled out immediately after the accident and signed by Darrell Thompson, Weidenhamer's foreman. Since he was not an eyewitness to the accident Certain Harvester employees, including Weidenhamer, were required to wear safety glasses on the job. The standard metal frame and replacement lenses were provided free, with a small charge if plastic frames were preferred. The safety glasses were furnished by American Optical and U.S. Safety to the safety bin at Harvester where they were distributed to the employees. The glasses were initially distributed with, of course, frames and lenses of the same manufacturer. However, the lenses from the two companies were interchangeable so if an employee came in with scratched or pitted lenses it was possible that the clerk in the safety bin would replace them with lenses from either company. Consequently, an employee who had changed the original lenses might have American Optical frames with U.S. Safety lenses and vice versa. Harvester bought most of its frames from American Optical and most of its replacement lenses from U.S. Safety.

Thompson's report and testimony were based upon his reconstruction of the accident, his experience and training. According to Thompson, the accident must have occurred because Weidenhamer erroneously left the hoist attached to the part being machined when he turned on the machine and started its rotation. Weidenhamer, on the other hand, insisted he operated the lathe correctly and demonstrated such operation for the jury. He claimed it was impossible for the accident to have occurred in the manner described by Thompson. Weidenhamer also stated he had not filled out the form and was unaware of its contents when he signed it. He also indicated he was still wearing his eye patch when he signed the paper at Harvester's request approximately two weeks after the accident.

Immediately after the accident, Thompson discovered both the frames of Weidenhamer's safety glasses with the left lens intact and several pieces of broken glass from the right lens on the ground near the place where Weidenhamer was working. Several more pieces of glass were found near the scene by Alvin Berry, a safety committeeman. All of these items were delivered to the safety department, however, when later requested for examination, they could not be located and were unavailable at the time of the trial. Therefore, none of the parties had physical evidence from which they could determine the manufacturer of the glasses. ¹ There was no evidence that any of the parties to this appeal were responsible for the unavailability of the glasses.

Weidenhamer testified that during his employment from 1969 to the date of the accident he believed he had purchased four or five pairs of safety glasses with black frames. He also acknowledged that he had, on occasion, replaced the lenses in these glasses. However, both in his deposition prior to trial and at trial, he stated he remembered the frames he was wearing had "AO", the insignia used by American Optical, on the top corner of each side of his frames and, moreover, he had not replaced the lenses on the glasses he was wearing at the time of the accident.

An expert witness for American Optical, Neil Brant, testified that safety glasses contain glass lenses which meet certain geometric requirements, that is, the thickness was plano (flat) thickness between 3.0 and 3.8 millimeters. Also their impact resistance was approved by a heat treating process and they passed a drop ball test which involved dropping a one inch in diameter steel ball on the lens from a height of 50 inches. These were the standards accepted by the glass industry and by the Occupational Safety and Health Act (OSHA). He added American Optical, before distribution, tested all its lenses in order to determine if they met the foregoing standards. Brant examined a fragment of glass taken from Weidenhamer's eye and concluded the lens from which the fragment was taken had received a proper heat treating procedure.

He stated the fragment was pitted and scratched and, in his opinion, the scratches existed prior to the accident. However, there was conflicting testimony by Weidenhamer that his glasses were neither scratched nor pitted and Weidenhamer's expert asserted that a scratch sufficient to reduce the impact resistance of the lens would have been visible to Weidenhamer. There was no testimony that the fragments had been properly cared for in the interval between the removal from Weidenhamer's eye and the examination by Brant. Finally, Brant opined that if the accident had occurred in the manner described in Thompson's report, no safety glasses would withstand the impact and any glasses made to withstand such impact would distort vision and/or be so heavy they would be impractical to wear.

Mr. Cobble, the safety bin clerk, verified that each pair of U.S. Safety and American Optical frames delivered to Harvester had what might have been a warning ² attached to the frames, but which he had never read. U.S. Safety's warning was on the temple and American Optical's on the nosepiece. He stated he removed both warnings in order to fit the glasses and therefore, to his knowledge, no employees had ever seen the warnings. Berry, the Safety Committeeman, testified that in the 30 years he had worked at Harvester he had never been aware of a warning attached to the glasses or in a brochure.

Weidenhamer stated he was unaware of any warning and it was his belief that the safety glasses were unbreakable and able to withstand virtually any pressure. In fact he was aware of an accident where a piece of metal was embedded in an employee's lens and the glasses did not break.

U.S. Safety's Motion For Judgment On The Evidence

At the close of all the evidence, U.S. Safety moved for a judgment on the evidence pursuant to Ind. Rules of Procedure, Trial Rule 50(A)(3), basing its motion on the allegation that there was no evidence submitted by plaintiff which indicated it had manufactured the safety glasses in question. The motion was overruled by the Trial Court. We believe the trial court erred in this regard.

T.R. 50(A)(3) provides:

"JUDGMENT ON THE EVIDENCE (DIRECTED VERDICT)

(A) Judgment on the evidence How raised Effect. Where all or some of the issues in a case tried before a jury or an advisory jury are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is...