Sutkowski v. Universal Marion Corp.

• Decision Date: 18 April 1972
• Docket Number: No. 71--77,71--77
• Citation: 281 N.E.2d 749,5 Ill.App.3d 313
• Parties: Edward F. SUTKOWSKI, Administrator de Bonis Non of the Estate of Peter Demko, Deceased, Plaintiff-Appellant, v. UNIVERSAL MARION CORPORATION, a Florida Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 749

281 N.E.2d 749

5 Ill.App.3d 313

Edward F. SUTKOWSKI, Administrator de Bonis Non of the Estate of Peter Demko, Deceased, Plaintiff-Appellant, v. UNIVERSAL MARION CORPORATION, a Florida Corporation,

Defendant-Appellee.

No. 71--77.

Appellate Court of Illinois, Third District.

April 18, 1972.

James L. Hafele, Peoria, for plaintiff-appellant.

Richard Quinn, Peoria, for defendant-appellee.

STOUDER, Presiding Justice.

Plaintiff, Edward Sutkowski, as administrator of the estate of Peter Demko, deceased brought this action in the Circuit Court of Peoria County seeking to recover damages from Universal Marion Corporation, defendant, on account of the wrongful death of the decedent. The action, a products liability case, sought recovery for breach of warranty and strict liability. The jury found in favor of defendant, post trial motions were denied and this appeal follows. The only errors assigned on this appeal relate to plaintiff's action based on strict liability.

The basic facts are not substantially disputed, the principal dispute being the conflicting inferences which may be drawn therefrom. In 1961 the defendant manufactured and sold to the Peabody Coal Company (not a defendant in this action) a piece of strip mining equipment in the nature of a 'steam shovel'. The machine is mammoth, weighing in excess of a thousand tons and is as tall as a ten story building. The machine is supported on and moved by four crawler type tracks located at each of the four corners of the machine, each track being approximately twenty-two feet long and nine feet high. The machine is designed to remove the materials (dirt, stone, etc.) lying over a seam of coal and deposit them to one side forming a high mound or spoil bank. The machine which is electrically powered operates continuously 24 hours a day.

On the 25th of November, 1966, Peter Demko, the deceased, hereinafter referred to as the plaintiff, was employed by Peabody Coal Company at its Midland Electric Mine in Framington, Illinois. During the first shift Demko informed the machine operator that he was leaving the machine and about five minutes later was discovered under the machine crushed to death by a large stone. In getting in and out of the machine persons ascend and descend at a point midway between the front crawlers and rear crawlers and then proceed to the rear between the rear crawlers. The distance between the front crawler and the rear crawler on the same side was estimated to be ten to twelve feet and there is nothing in this area to obstruct rocks, dirt and other debris from rolling or sliding down the spoil bank underneath the machine. The rock which killed Demko weighed approximately two tons and its approximate dimensions were eight feet by four feet by two and a half feet. Other employees testified that it was not uncommon for rocks and other debris to fall from the spoil bank underneath the machine. They also testified that the machine was in the same condition on November 25, 1966, as it was when it was assembled at the job site in 1961.

In seeking to reverse the judgment of the trial court denying his motion for a new trial the plaintiff makes three principal assignments of error. First, according to plaintiff, the trial court erred in refusing to permit one of his experts from expressing any opinion concerning alternative designs. Second, the court refused to permit the introduction of evidence that alternative designs were feasible, such evidence consisting of testimony and photographs that the machine in question had been modified after the occurrence. Finally plaintiff argues the trial court erred in excluding his tendered issues instruction.

After Demko was killed it appears from excluded testimony and exhibits that at the recommendation of Jayne, an Illinois Mine Inspector who testified on behalf of plaintiff, a barrier was coanstructed in the space between the front and rear crawler consisting of tires and heavy chains designed to prevent the sliding or rolling of debris from the spoil bank under the machine. The post occurrence modifications in the stripping shovel were first sought to be introduced into the case by plaintiff by questions asked of Jennings, a fellow employee testifying in behalf of plaintiff. When objections were interposed by defendant to photographs showing such post occurrence changes presented to Kennings for identification the court sustained such objections and thereafter the plaintiff made an offer of proof outside the presence of the jury which described the barrier. The plaintiff also sought to introduce the same testimony by exhibiting photographs to Jayne, the mining safety engineer and another expert witness Herman Ludwig, a professor at Wayne State University. On each occasion the defendant objected to the photographs or any testimony regarding the changes and the court sustained the objections. These rulings are assigned as error on this appeal.

Jayne, a state mining inspector, testified concerning his experience and qualifications as well as his examination of the scene of the incident. Objection to his qualifications as an expert were overruled by the trial court and no question of his qualification is raised on this appeal. After any testification is raised on this appeal. After rence barrier had been excluded Jayne testified to the hazardous conditions of exit and entrance to and from the machine. He was asked, 'Now Mr. Jayne, do you have an opinion as to whether that hazard could have been reduced in any fashion?'. Objection to the question was made by defense counsel and sustained by the court although the record does not indicate that defense counsel specified any reason for his objection or did the court indicate any reason for sustaining the objection. Thereafter out of the presence of the jury plaintiff's counsel made the following offer of proof, 'I offer to prove by this witness that upon his finding that a hazardous condition existed, he made a recommendation. I offered to do this by direct testimony of the witness. He made a recommendation that barriers be erected in the space between the crawlers. He made this recommendation on the basis of his experience and on the basis of his investigation of this fatal accident and he made this recommendation to the mining company--not to the Defendant. He also included that recommendation in his report as follows: 'Openings between traveling crawlers where clear visual observation of high walls and spoil banks is obstructed by machine frame structure--adequate barriers should be maintained to prevent any possible overburden material from rolling through these openings and striking anyone passing or working under the machine.' . . .'. Objection to the offer of proof was sustained by the trial court. Professor Ludwig expressed his opinion that the conditions of ingress and egress were hazardous but was not asked his opinion concerning alternative methods of reducing or eliminating the hazardous conditions.

We consider first the assignment of error relating to the exclusion of Jayne's opinion. According to Miller v. Pillsbury Co., 33 Ill.2d 514, 211 N.E.2d 733, '. . . the trend is to permit expert testimony in matters which are complicated and outside the knowledge or understanding of the average person, and even as to matters of common knowledge and understanding where difficult of comprehension and explanation. The jury still may accept or reject such testimony.'. See also, Grismore v....