Shawver v. Roberts Corp.
| Decision Date | 29 June 1979 |
| Citation | 90 Wis.2d 672,280 N.W.2d 226 |
| Parties | Elim Luther SHAWVER, Plaintiff-Appellant, v. ROBERTS CORPORATION, a foreign corporation, Defendant-Respondent. 76-676. |
| Court | Wisconsin Supreme Court |
J. Richard Long (argued), Beloit, and Theodore R. Postel (argued), Chicago, Ill., of counsel, for plaintiff-appellant.
Richard E. Rosenberg (argued), Janesville, for defendant-respondent; Nowlan, Mouat, Lovejoy, Wood & Cripe, Janesville, on the brief.
This is a product liability case. The jury found in favor of the defendant Roberts Corporation, which designed and manufactured a conveyor on which the plaintiff, Elim Luther Shawver, was injured. Mr. Shawver appeals from a judgment entered on the verdict on March 4, 1977.
The questions on appeal are:
1. Was there credible evidence in the record to support the jury's finding that the conveyor, when it left the hands of the manufacturer was not in such defective condition as to be unreasonably dangerous to the buyer or its employees?
2. Was there credible evidence in the record to support the jury's finding that the Roberts Corporation was not negligent in designing, manufacturing, or assembling the conveyor, failing to give a warning as to the danger of the conveyor, or failing to provide the buyer with adequate plans, specifications, instructions and directions for the safe installation of the conveyor?
3. Did the trial court abuse its discretion in refusing to grant a new trial?
Elim Luther Shawver was working as a molder's helper in the foundry at the Beloit Corporation on February 21, 1973 when his right foot was crushed in an accident. As a result of his injuries, it became necessary to amputate his right foot above the ankle.
At the time of the accident, Mr. Shawver was standing on the metal deck of a conveyor, cleaning out a mold (also called a flask) used to make castings. The conveyor was about eight feet wide, sixty-three feet long and one and one-half feet above the floor. A fellow worker mistakenly thought that Mr. Shawver had signalled to move the conveyor, and pressed the button to start the equipment. This caused the mold to move forward onto Mr. Shawver's foot, crushing it. He had no warning that the conveyor was going to be started.
The conveyor was designed, manufactured and sold to the Beloit Corporation as a combination work platform and conveyor. It consisted of rollers spaced about twelve inches apart. Between the rollers there was a grating for workers to stand on.
The quotation from the Roberts Corporation, dated March 8, 1966 provided the following:
Joe Brown, vice president in charge of engineering at Roberts Corporation, testified that he was in charge of the design and drawings for the conveyor. He was not qualified to design electrical controls. No one was designing electrical controls for Roberts Corporation in 1966. Occasionally Roberts did furnish controls in conveyors, at that time subcontracting the work. No controls were sent with this conveyor sold to the Beloit Corporation. The Roberts Corporation gave no instructions or advice to Beloit regarding safety features for the conveyor. He gave the following testimony:
Harold A. Miller, Chief Electrical Engineer for Roberts Corporation, worked for a competitor conveyor manufacturer in 1966 called Planet Corporation. He had been in the controls business since 1946 and the conveyor business since 1966, and had experience designing controls for conveyors. He testified that it was dangerous to have a situation in which one worker could press the control to start the conveyor while another worker was standing on the conveyor. In the conveyor industry, there are several safety devices to protect workers from such dangers, all of which existed in 1966. One safety feature would be to install the push button at a height so that the operator would not have to bend over to press the button. The push buttons on the conveyor in this case were sixteen or eighteen inches off the floor. When the operator is at the controls, it is not possible at all times to see everyone who is on the conveyor. Second, an alarm system linked to a time delay would alert the person standing on the conveyor by means of a horn and a flashing light that the conveyor was about to start moving. Third, the best device would be remote "palm buttons." The testimony was that if two people were working on the conveyor, both of them would have to get off the machine to press the palm buttons. This would assure that they were off the conveyor. Fourth, a cable operated pull switch could be stretched along each side of the conveyor, enabling a worker to disable the conveyor in an emergency. However, there was testimony that a cable-operated shutoff would not have helped Mr. Shawver because he could not have reached the cable.
Mr. Miller also testified that the custom in the industry both in 1966 and at the time of trial was to furnish conveyors with or without controls, according to what the customer requested. There was also testimony that as to controls, the manufacturer either furnished nothing or "all of it." "All of it" includes safety devices. He said that the contract terms between Roberts and Beloit Corporation meant there would be no electrical component of any type furnished with the conveyor.
Mr. Miller stated that Roberts Corporation could not have sent along a package of safety devices because factory conditions might differ. To design an effective safety system, it would be necessary to know the noise level, the lighting system and competing signals on other equipment in the factory. He said that too much custom work was involved to say that one set of controls would satisfy all conditions.
Professor Ralph Barnett, a professor of engineering at the Illinois Institute of Technology and a consulting engineer testified that in his opinion the conveyor was not designed in a safe manner because the control system that is used instantly starts the conveyor moving without a warning. He observed as many as five people working on the work platform when the conveyor was standing still. Anyone who pushed the forward button must be sure that everyone is off the conveyor because it starts without any warning at all. No matter where the operator is standing, or where the controls are located, it is possible not to see someone who is working on the platform.
He testified that a delay time with a horn or light going on before the conveyor can actually move would allow the people working on the platform to know that the conveyor was about to start. Such a warning system is not a major undertaking for a designer. Professor Barnett demonstrated a model of a warning system at the trial. When the start button is hit, a light begins to flash and a horn sounds. The warning system is linked to the starting mechanism so that the conveyor would not be able to start until ten seconds had elapsed. All of the parts for such a device were available in 1966 and would cost about $250. The conveyor cost about $84,000.
He also testified that controls and safety devices were distinct concepts, although a control can be made into a safety device. He was unaware of any custom in the industry that if a manufacturer does not supply controls, he does not supply safety devices either. He said that the controls would be hooked up to the safety device which he demonstrated, but that the safety devices were totally separate. In his opinion the conveyor was unreasonably dangerous at the time it was shipped because of the total lack of safety devices.
The conveyor was shipped unassembled and without controls or safety devices. It was assembled and installed at the Beloit Corporation. There was testimony that some additional steel pieces were attached to the frame at the Beloit Corporation. These steel pieces were not furnished by Roberts. However, Mr. Miller did testify that as far as he knew the conveyor was assembled and operated at the Beloit Corporation as the Roberts Corporation designed it.
There was evidence that the warning device demonstrated by Professor Barnett could not be used because it exceeded noise levels permitted by the Occupational Safety And Health Act standards. There was also testimony that it would distract and take attention from more dangerous operations, such as trucks moving molten metal which are equipped with warning bells.
In reviewing a judgment entered on a jury verdict, this court will view evidence in the light most favorable to the verdict, and affirm if there is any credible evidence on which the jury could have based its decision, particularly where the verdict has the approval of the trial court. Toulon v. Nagle, 67 Wis.2d 233, 242, 226 N.W.2d 480 (1975). The credibility of witnesses and the weight given to their testimony are matters left to the jury's judgment, and...
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