Banner Welders, Inc. v. Knighton

Decision Date17 December 1982
Citation425 So.2d 441
PartiesBANNER WELDERS, INC., a Corporation v. Melvin L. KNIGHTON. 80-832.
CourtAlabama Supreme Court

Ralph Gaines and Sidney J. Hardy of Gaines, Cleckler & Goodrich, Talladega, for appellant.

Herbert D. Jones, Jr. and J.L. Klinefelter of Burnham, Klinefelter, Halsey & Love, and John R. Phillips of Phillips & Rice, Anniston, for appellee.

ADAMS, Justice.

This appeal involves an action under the Alabama Extended Manufacturer's Liability Doctrine and was tried before a jury in the Circuit Court for Calhoun County. Melvin Leo Knighton (plaintiff) received a verdict and judgment in the amount of $225,000.00 for personal injuries sustained on a shuttle welder. Banner Welders, Inc. (defendant), moved unsuccessfully for post-judgment relief under Rule 50, Alabama Rules of Civil Procedure, and then appealed.

Five issues are presented for our consideration by this appeal. They are:

1. Did the trial court err to reversal by allowing into evidence certain color photographs, offered by plaintiff, which purportedly showed or suggested post-accident safety modifications to the shuttle welder?

2. Did the evidence establish plaintiff's misuse of the shuttle welder, thereby entitling defendant to a directed verdict?

3. Did the evidence establish that plaintiff was contributorily negligent, or that he assumed the risk of injury, in his operation of the shuttle welder?

4. Did the remarks made by plaintiff's counsel during closing argument improperly influence the jury so as to require a new trial?

5. Did the evidence establish that the shuttle welder had undergone a substantial change between the time of its manufacture and the date of plaintiff's accident, thereby precluding plaintiff from making out a case under the Alabama Extended Manufacturer's Liability Doctrine and entitling defendant to a directed verdict?

We answer the questions posed by these issues in the negative, and we affirm the judgment of the trial court. Each issue will be considered separately.

Plaintiff's original complaint alleged negligence in the failure to provide guards on the shuttle welder to prevent personal injury, and negligence in failing to provide warnings of the danger inherent in it. Subsequently, the complaint was amended to include a count for breach of implied warranty and a count under the Alabama Extended Manufacturer's Liability Doctrine. Defendant pleaded the general issue; contributory negligence; misuse of the product; assumption of the risk of injury; and other matters not essential to an understanding of this case.

Plaintiff was a shuttle welder operator employed at Universal Products' Bostrom plant in Piedmont, Alabama. On February 11, 1977, he was injured while operating the shuttle welder. The shuttle welder has a moving carriage powered by air pressure. It takes pieces of metal, in this case Jeep seat frames, to different stations for welding. The carriage moves away from the operator, taking the metal pieces to the welding stations. They are then returned to the operator, who removes them. The machine was manufactured by defendant specifically for plaintiff's employer. Defendant's expert witness, Tom Rosenberg, a mechanical engineer and vice-president of manufacturing for Banner Welders, Inc., testified that the shuttle welder was custom built and was unique. Rosenberg acknowledged it was known that at times the welder would jam due to various causes.

Such a jam occurred on the date of the accident. At the time, plaintiff had operated the shuttle welder for three or four months. Plaintiff's testimony revealed that when the jam occurred, plaintiff turned off the master electrical switch. He tried unsuccessfully to dislodge the stuck frame with a three-foot metal pipe which he had previously used successfully for the same purpose. While plaintiff was attempting to unjam the shuttle welder, his supervisor, Bob Adams, came by. Adams instructed plaintiff to use a screwdriver to loosen the frame. He borrowed one from a fellow employee and returned to the shuttle welder. Plaintiff testified that in attempting to dislodge the frame, he kept one foot on the floor, placed his knee over the carriage, and reached up. At that point, apparently, the carriage caught his arm, the frame broke loose, and he was pulled into the shuttle welder. As a result, he broke his hip and wrist, and had to undergo a total hip replacement.

Plaintiff testified that when the accident occurred, the carriage moved toward him, unlike previous occasions when it would not move, or would move away from him. Plaintiff's supervisor testified that even with the air turned off, the machine still could move because of compressed air in the lines. Adams acknowledged that to bleed air out of the lines, a small valve on the side of the machine had to be used. It was disputed at trial as to whether plaintiff was correctly instructed regarding what to do in the event the shuttle welder jammed.

Arnold Martin, a "certified safety professional," testified as an expert witness for plaintiff. Martin explained that at the time of the shuttle welder's manufacture, the state of the art required that in the interest of safety it should have been made with guards on both sides and in the rear to prevent someone from entering it. He also stated that a warning should have been placed on the shuttle welder. He explained as follows:

The other thing, and probably more hazardous, was decals or a sign should have been placed on the machine to the effect that after the power had been turned off, the electrical power, No. 1, the air system should have been turned off; No. 2, the lines bled, because as long as there was pressure in there, there was a possibility that any part stuck in there would trip the machine when they were unjammed; and, the third thing was that a trained maintenance man, or another trained employee, only should have unjammed the machine.

Subsequent to plaintiff's accident, protective barrier guards were installed on the shuttle welder.

I. The Color Photographs

Defendant contends that the trial court erred to reversal by allowing certain color photographs, offered by plaintiff, to be admitted into evidence. The basis of defendant's contention is that the photographs showed post-accident modifications to the shuttle welder, which were apparently made for the purpose of making the machine safer. Generally, evidence of subsequent repairs is not admissible to establish negligence, although it may be admissible to show identity of ownership, to show control of the locus, to contradict or impeach a witness, or to lessen the weight of an expert opinion. Norwood Clinic, Inc. v. Spann, 240 Ala. 427, 199 So. 840 (1941). Another permissible use may occur where such evidence is offered to establish a condition existing at the time of the accident. Leeth v. Roberts, 295 Ala. 27, 322 So.2d 679 (1975). Defendant contends that the photographs were not admissible under any exceptions to the general rule. Assuming, without deciding, that defendant is correct on that point, we find, with the exception of plaintiff's exhibits one, six, nine, and ten (to which defendant objected at the time they were offered), that defendant failed to preserve error as to the photographs.

Defendant theorizes that it preserved error as to all photographs by its motion in limine, and that an objection to the photographs, at the time they were offered into evidence, was unnecessary. We disagree. At the beginning of trial, defendant orally moved for a motion in limine:

MR. GAINES: If it please the Court, on behalf of the Defendant, we move for an order in limine, Judge, if that is the way it is supposed to be phrased, and I think it is, and ask the Court to enter an Order preventing or prohibiting the attorneys for the Plaintiff from going into any evidence regarding any change or changes made in the machine in question after this accident; and also, prohibiting them from offering any photographs of the machine showing a changed condition after the accident in question. And, Judge, we believe that we are entitled to this. We believe that the overwhelming law of many jurisdictions is that such evidence is not admissible if any changes are made, whether they are for remedial purposes or precautionary purposes, of taking precautionary measures. Evidence of subsequent steps is not admissible to prove say negligence, I mean any design defects they claim. It is not admissible as evidence of any of the unreasonable danger, dangerous nature, of the machine in question. We have a number of citations, if the Court would like to look at them. We don't believe that that evidence should be admitted in the case, and we ask for an order in limine prohibiting it.

After that, plaintiff and defendant argued their positions to the trial judge, who viewed the disputed photographs and rendered a decision on their admissibility. The judge ruled that some photographs were admissible, that others were not admissible, and that some would be admissible only after objectionable portions were cut off:

THE COURT: Let her mark them and then I will go get the scissors. On Plaintiff's Exhibit 1, I am going to cut off that part right through there (indicating). And on Plaintiff's Exhibit 2, I am going to cut off that (indicating). On 3, I don't see any problem. No. 4, it is at such a distance that I don't really see any problem. No. 6, there doesn't seem to be any problem. I think that one, No. 7, there is no way to correct it. No. 8--look at it.

MR. GAINES: That is all right.

THE COURT: No. 3, No. 6, No. 2, and No. 1, there seems to be no objection. No. 7, first of all, I don't think it is a very good picture and it has got that pole right in the middle of it. I sustain the objection to No. 7. I overrule your objection to 4 and I think that is more of a duplication, No. 5 is. I sustain your objection to 5. As far as 9, 9 will be all right. 10--

MR. GAINES: I don't even know what that is.


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