City of Cedarburg Light and Water Commission v. Allis-Chalmers Mfg. Co.

• Decision Date: 31 January 1967
• Docket Number: ALLIS-CHALMERS
• Parties: CITY OF CEDARBURG LIGHT & WATER COMMISSION, a Wis. commission, Plaintiff-Respondent, v.MFG. CO., a corporation, Defendant-Respondent, Nordberg Mfg. Co., a corp., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 13

148 N.W.2d 13

33 Wis.2d 560

CITY OF CEDARBURG LIGHT & WATER COMMISSION, a Wis commission, Plaintiff-Respondent, v. ALLIS-CHALMERS MFG. CO., a corporation, Defendant-Respondent Nordberg Mfg. Co., a corp., Defendant-Appellant.

Supreme Court of Wisconsin.

Jan. 31, 1967.

Opinion Modified on Denial of Rehearing April 11, 1967. See

149 N.W.2d 661.

Foley, Sammond & Lardner, Steven E. Keane and Gilbert W. Church, Milwaukee, for appellant.

Quarles, Herriott & Clemons, Milwaukee, L. C. Hammond, Jr. and John S. Holbrook, Jr., Milwaukee, of counsel, for defendant-respondent.

Levy & Levy, Cedarburg, Kivett & Kasdorf, Milwaukee, for plaintiff-respondent.

GORDON, Justice.

This appeal involves a jury's findings which have been sustained by the trial court. Upon review in this court we are committed to the rule that the judgment must be upheld if there is any credible evidence which under any reasonable view admits of an inference supporting the verdict. Burlison v. Janssen (1966), 30 Wis.2d 495, 141 N.W.2d 274; Zweifel v. Milwaukee Automobile Mut. Ins. Co. (1965), 28 Wis.2d 249, 137 N.W.2d 6. Our search is only for evidence supporting the jury's findings. Olson v. Milwaukee Automobile Ins. Co. (1954), 266 Wis. 106, 62 N.W.2d 549, 63 N.W.2d 740. These standards apply not only as to the presence of negligence but also as to the existence of causation. Milwaukee & S.T. Corp. v. Royal Transit Co. (1966), 29 Wis.2d 620, 139 N.W.2d 595; Krause v. Menzner Lumber & Supply Co. (1959), 6 Wis.2d 615, 95 N.W.2d 374.

The record in the case at bar is lengthy. The jury verdict contained 43 questions. Our study of the transcript persuades us that notwithstanding the length of the proceedings and the complexity of the subject, the trial was fairly conducted. We also believe that an intelligent verdict and a proper judgment were reached despite the many contradictions in the evidence. In our view, there is both expert and lay testimony which, together with the inferences which can fairly be drawn therefrom, afford at least the minimum credible evidence to show that the appellant was causally negligent.

There was evidence offered which would warrant the jurors' belief that there was causal negligence in Nordberg's failure to shop-test the engine. One of the expert witnesses was Mr. Fodor, who works as a consulting engineer and who had spent four years as an engineer with Allis-Chalmers. He testified that the failure to test the engine before delivery was not in accordance with good engineering practice. Although counsel for Nordberg attempted to show that this opinion was based on a mistaken assumption that the equipment in question was a 'prototype,' there is evidence in the record which would permit the jurors to conclude that the machine was in fact a prototype.

A prototype was described as an engine which is the first of its kind or one in which there has been a large design change. With regard to the machine in question, Mr. Brinson, the chief engineer of Nordberg's power machinery division, testified that Nordberg had not previously built an identical unit. At another point, he stated that Nordberg had not constructed a diesel engine unit for generating electricity which had the same number of cylinders as that of the Cedarburg unit. In addition, Exhibit 68, a written memorandum from Mr. Brinson, contains the following statement with reference to the machine in question:

'Additional tests beyond what we were able to do in the shop are desirable in view of the fact that this will be our first application of Brown-Boveri turbochargers to our two-cycle engines.'

The jurors may have concluded that the failure to shop-test was an act of negligence, and they also were entitled to find such negligence to be a cause of the accident. The purpose of a shop test is to expose defects in the equipment. The jury may have believed that a shop test would have disclosed some of the flaws which subsequently developed. We believe that the jury may have properly inferred that the failure to test the machine was a substantial factor in producing the damages.

In addition, the triers of fact were entitled to have found negligence in connection with the evidence that Nordberg placed the unit on an around-the-clock operation during the testing period even though certain fuel tube failures occurred. Mr. Fodor testified that in his opinion it was not 'good engineering practice to continue the engine operation around-the-clock for two weeks.' He also indicated that this could have contributed to the failure of the damper bar. In our opinion, it was also within the province of the jury to find that the around-the-clock operation was causal.

There was extensive testimony concerning a number of malfunctions which occurred in the installation, maintenance and repair of the unit by Nordberg. Two engineers employed by Allis-Chalmers, Mr. Appleyard and Mr. Jandovitz, testified that various of the malfunctions contributed to the excessive vibrations.

When Mr. Jandovitz was asked whether he could put his finger on 'any one of them, or any two, or collection of them, that did in fact cause the failure,' he responded that 'all were a contributing cause.' He also acknowledged that anything which changed the vibration from normal 'is equally a contributing factor.'

Mr. Appleyard testified that in his opinion excessive vibrations caused the damper bar to break. He also believed that the source of the vibration was the diesel engine which drove the generator. Mr. Appleyard expressed the opinion that a source of the erratic vibration could have been 'improper maintenance or operation.'

In our opinion, it was proper to receive into evidence the testimony concerning the various malfunctions, and from all the evidence in this case the jury may have inferred a duty upon Nordberg to have avoided the malfunctions or to have detected them and taken steps to correct them before major damage occurred.

Nordberg argues that it could not be found liable in the absence of expert testimony on both the question of negligence and the...