American Optical Co. v. Weidenhamer

• Decision Date: 16 December 1983
• Docket Number: Nos. 1283S448,2-1276A462,s. 1283S448
• Citation: 457 N.E.2d 181
• Parties: AMERICAN OPTICAL COMPANY, U.S. Safety Service Company and Warner Lambert Company, Appellants (Defendants Below), v. Chris M. WEIDENHAMER, Appellee (Plaintiff Below), and International Harvester Company, Appellee (Defendant Below).
• Court: Indiana Supreme Court

Page 181

457 N.E.2d 181

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

Nos. 1283S448, 2-1276A462.

Supreme Court of Indiana.

Dec. 16, 1983.

John M. Clifton, Jr., John F. Lyons, 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 William Colvin, Snouffer, Haller & Colvin, Fort Wayne, for appellee Chris M. Weidenhamer.

PRENTICE, Justice.

This cause is before us upon the petition of defendant, appellant, American Optical Company, a division of Warner Lambert Company, (hereinafter called "American") for transfer from the Court of Appeals, Fourth District, which affirmed, in part, and reversed, in part, the judgment of the trial court awarding damages to the plaintiff, appellee, against American and a co-defendant, U.S. Safety Service Company, (hereinafter called "U.S."). The decision and opinion of the Court of Appeals appears at 404 N.E.2d 606.

The petition to transfer is now granted pursuant to Ind.R.App.P. 11(B)(2)(f) in that said decision contravenes a ruling precedent of this court holding that a manufacturer has no duty to warn of danger that is open and obvious. Bemis Company v. Rubush, (1981) Ind., 427 N.E.2d 1058 (Rehearing denied 2/10/82).

The action in the trial court arose from severe eye injuries received by Plaintiff (Appellee) while working at a large metal turning lathe for his employer, International Harvester Company (hereinafter called "Harvester"). Harvester was also named a co-defendant, but its motion for judgment on the evidence, filed at the conclusion of Plaintiff's evidence, was sustained. The correctness of that ruling has not been challenged on appeal. Like motions by American and by U.S. were overruled.

Plaintiff was wearing safety glasses when the accident occurred, but the right lens broke when it was struck a severe blow by a hoist used to lift castings in and out of the lathe cradle. Fragments from the broken lens cut his eyeball and resulted in substantial and permanent impairment of his vision.

At the time of the accident and for several years prior thereto, Harvester employees in the factory were required to wear safety glasses while working, and it furnished glasses for that purpose. The glasses so furnished consisted of frames and lenses manufactured and sold to Harvester by both American and by U.S. The lenses were held in the frames by friction. All lenses fit all frames, and it was customary to replace scratched or damaged lenses, from time to time, with new ones and to utilize the old frames. Both complete glasses and replacement lenses were provided through the "safety crib" operated by Harvester employees. Most frames were plastic, for which the employees paid a small charge. But both initial lenses and replacement lenses were furnished by Harvester at no cost to the workers.

Plaintiff's complaint alleged that the broken lens was defective and had been manufactured by either American or by U.S., and postulates, on appeal, that inasmuch as his evidence reflects that the allegedly defective lens was manufactured by one or the other of such defendants, the burden was upon each to prove that it did not do so and that if neither carries that burden, both may be held liable. The Court of Appeals did not respond upon this issue but, instead, determined that Plaintiff was bound by his own testimony that he was wearing frames and lenses supplied by American when the accident occurred and that, therefore, the trial court should have sustained the motion filed by U.S. for judgment upon the evidence. After a detailed review of all of Plaintiff's evidence, we would be hard pressed to agree that his testimony was "clear and unequivocal" that he was wearing American glasses and lenses at that time. However, we reach our decision herein upon the issue of causation; hence we need not concern ourselves with the identity of the manufacturer.

Plaintiff's complaint was based upon the multiple theories of negligence, breach of implied warranty of merchantability and fitness for a particular purpose, breach of express warranty and strict liability in tort. It is axiomatic that in order to impose liability upon any defendant under any of the foregoing theories, it was incumbent upon Plaintiff to prove, by a preponderance of the evidence, that his injury was the proximate result of the breach of some duty owed him by one or more of the defendants. This, he failed to do. "To prove a defect, a plaintiff is not required to eliminate with certainty all possible causes of an accident; it is sufficient if the evidence reasonably eliminates improper handling or misuse of the product by others than the manufacturer, thus permitting the jury to reasonably infer that it was more probable than not that the product was defective. But there is also authority to the effect that the requirement of showing a defect cannot be satisfied by reliance on the doctrine of res ipsa loquitur." 63 Am.Jur.2d 136, Products Liability Sec. 130.

Appellant has correctly cautioned us that in determining whether or not the trial court erred in denying the motions of American and U.S. for judgment upon the evidence, we are governed by the rules applied in Mamula v. Ford Motor Co., (1971) 150 Ind.App. 179, 181, 275 N.E.2d 849:

" 'On appeal we will consider only the evidence most favorable to the party against whom the motion for directed verdict was made and all reasonable inferences from such evidence.' " (citations omitted.)

" 'It is only where there is a total absence of evidence or legitimate inferences in favor of plaintiff upon the issues, or where the evidence is without conflict and is susceptible of but one inference and that inference in favor of the defendant, that the court may give a peremptory instruction.' " (citations omitted.)

We do not, by this citation, however, approve of all that was said there. Determining whether or not evidence is sufficient for the purpose proffered requires both a quantitative and a qualitative analysis with the avowed purpose of determining whether or not it can be said, with reason, that such purpose was thereby fulfilled. If opposite conclusions could, with reason, be drawn, then it cannot be said that the evidence was insufficient. The key word that is present in all of our variously worded explanations, by inference if not expressly, is "reasonable." Quantitatively, evidence may fail only if it is absent, that is only when there is none at all. Qualitatively, however, it fails when it cannot be said, with reason, that the intended inference may logically be drawn therefrom; and this may occur either because of an absence of credibility of the witness or because the intended inference may not be drawn therefrom without undue speculation. The use of such words as "substantial" and "probative" are useful in articulating the methodology, because they focus our attention upon the qualitative aspects of the issue and succor objectivity where subjectivity is wont to go.

All of the evidence with respect to how the accident occurred came from Plaintiff and his witnesses.

There were no eye witnesses to the accident, other than the plaintiff, himself, and he testified that he did not know how it happened. He was working at the lathe when he was suddenly knocked off his feet, fell to the floor and felt excruciating pain in his right eye, which was bleeding.

Darrell Thompson, Jr., was Plaintiff's foreman. He escorted Plaintiff to the dispensary immediately and then returned to the scene of the accident and, as was his designated responsibility, attempted to determine how it occurred. He found Plaintiff's safety glasses on the floor. The left lens was intact, but the right one had been broken. He picked up the glasses and such pieces of broken glass as he could find, put them in an envelope and delivered them to the Harvester safety department.

Alvin Berry was a union designated safety committeeman in the factory. In accordance with his responsibilities in that capacity, he went to the scene of the accident to investigate. When he arrived, Plaintiff was not there, but he found sixteen or eighteen pieces of broken safety glass on the floor and concluded that Plaintiff had sustained an eye injury. The bits of glass ranged in size "from the size of a match head to about half a dime." He put the glass fragments in an envelope and placed them on the safety supervisor's desk. ¹

The lathe at which Plaintiff had been working was approximately ten feet long and was approximately four feet wide at its base. Plaintiff had been cutting iron castings, called differential carriers, in the lathe. The castings are about eighteen inches in diameter and weigh approximately ninety pounds. They are stacked upon pallets about five feet behind the lathe operator prior to the cutting and are lifted, transported and positioned in the lathe by means of an electrically operated hoist. When properly positioned, the castings are secured in the lathe by means of a hand operated wrench while they are still connected to the hoist. Proper operating procedure required that the castings be released from the hoist when so secured and that the hoist be then returned to a position approximately three feet behind the operator. The castings are then further secured upon the lathe chuck, which is located on a spindle, by electrically operated "chuck jaws," and not until they are so secured is the revolving action of the casting against the cutting tool commenced.

Witness Thompson, after having inspected the scene, being familiar with the prescribed lathe operation procedures and having observed Plaintiff performing such work, concluded that ...