O'Lander v. International Harvester Co.

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before O'CONNELL; HOWELL; TONGUE
• Citation: O'Lander v. International Harvester Co., 490 P.2d 1002, 260 Or. 383 (Or. 1971)
• Decision Date: 17 November 1971
• Parties: Raymond O'LANDER, Appellant, v. INTERNATIONAL HARVESTER COMPANY, a corporation, Respondent.

Page 1002

490 P.2d 1002

260 Or. 383

Raymond O'LANDER, Appellant, v. INTERNATIONAL HARVESTER COMPANY, a corporation, Respondent.

Supreme Court of Oregon.

Argued and Submitted Sept. 14, 1971.

Decided Nov. 17, 1971.

Gerald R. Pullen, Portland, argued the cause for appellant. With him on the brief was Jerald A. Wills, Portland.

Ronald E. Bailey, Portland, argued the cause for respondent. With him on the brief were Bullivant, Wright, Johnson, Pendergrass & Hoffman, Portland.

Before O'CONNELL, C.J., and HOLMAN, TONGUE and HOWELL, JJ.

HOWELL, Justice.

The plaintiff appeals from a judgment entered after an involuntary nonsuit in an action based on strict liability of the defendant for manufacturing a defective safety latch on a truck.

Plaintiff was a truck driver employed by Pihl Transfer Company. The truck, a 'cab-over' vehicle with a van body, had been purchased new by Pihl Transfer from defendant International Harvester Company approximately five months before the accident in question. It had been driven 5,000 miles and had been serviced about five times. In a 'cab-over' truck, the cab tilts forward on its nose in order to expose the motor, which is directly under the cab. The cab is secured in front by hinges, allowing the raising and lowering of the cab. In back, the cab is secured to the chassis by a cab, or main, latch which operates similarly to the latch on the hood of a regular automobile. The main latch is supplemented by a safety latch which also operates similarly to the safety latch on the hood of an automobile.

On June 2, 1967, plaintiff was driving the truck empty over the Broadway bridge in Portland. The truck hit a rough spot, and the cab became disengaged and tilted completely forward. Plaintiff collided headon with another vehicle.

Plaintiff brought this action on the theory of strict liability of the defendant for manufacturing a defective safety latch on the truck. He alleged in his complaint that the 'latching mechanism and safety latch that are designed to secure the cab from tilting failed to do so by reason of defect in manufacture by the defendant in that the safety latch was improperly assembled and in that the hook rivet was not properly installed nor properly headed, and the latching bar was misaligned.'

The primary question is the sufficiency of plaintiff's evidence of a manufacturing defect. This issue depends upon the testimony of a consulting engineer who examined the safety latch, and whether such testimony created a jury question of defective manufacturing of the safety latch, causing plaintiff's injuries.

A description of the safety latch and its method of operation is necessary for an understanding of the expert testimony. When the cab is in place, it is locked to the chassis by the main latch and the safety latch. The cab is released by pulling a lever, or handle, behind and outside the cab. Pulling the handle releases the main latch first. The safety latch then engages the latching bar, a steel bar about one-half inch in diameter attached to the frame of the truck below the cab. The safety latch is then released from the latching bar by pushing the same outside lever forward. The cab may then be tilted forward by one man lifting the cab. The tilting-forward process is facilitated by rubber springs called torsion rubber springs. To lower the cab, it is merely pushed down into position, and normally the main latch and safety latch will engage automatically, similar to latching the hood of an automobile.

The safety latch, a strip of metal about eight inches long with a hook on the end, is mounted on the underside and rear of the cab by two bolts. It is held rearward by a spring so that it will engage the latching bar and keep the cab from raising. The latching hook is released by the operating handle on the outside of the cab.

The hook portion of the safety latch is attached to the latch by a large rivet. The hook rotates up and down on the rivet. When the cab is lowered, the top of the hook grazes the latching bar, passes under it, and then extends past the latching bar to a position allowing it to catch onto the latching bar when the cab is raised or tilted forward.

John Talbott, a consulting engineer who had made examinations of the safety latch mechanism, was called as an adverse witness by plaintiff. On his direct testimony he stated that an examination of the safety latch revealed several long striations or marks on the metal on the Bottom side of the hook, resulting from steel rubbing on steel. He concluded that the hook had been caused to ride over the latching bar instead of going underneath it. He stated the overriding occurred 'because the safety latch was improperly assembled at the time of manufacture in that the hook rivet was not pulled up tight enough and was not properly headed. This condition was aggravated by the misalignment of the latching bar in relation to the safety latch.'

On cross-examination by defense counsel, however, Talbott testified that he and an associate had made another examination of the safety latch at a later time. He stated that he had secured 'new information' and had made 'new findings.' He concluded that the looseness of the rivet in the safety latch allowed only side-to-side movement of the hook but did not allow the hook to extend rearward, which extension would result in the hook overriding the latching bar. He stated that the marks or striations on the Top of the hook indicated that the latch had previously allowed the hook to operate properly by grazing the latching bar and passing under it as it should have done. He concluded that the safety latch had operated properly upon manufacture. He found that the overriding of the hook on the latching bar was caused by displacement of the hook extending too far to the rear, or the latching bar being too far forward, which occurred sometime after the safety latch had been operating properly. ¹

The plaintiff argues that Talbott's testimony on direct examination and on cross-examination was conflicting, because on direct examination Talbott stated that the looseness of the rivet constituted a manufacturing defect; on cross-examination he testified that the looseness of the rivet permitted only lateral movement, not forward and rearward movement, and therefore was not causative of the failure of the hook to latch properly. Plaintiff relies on the general rule...