Sweeney v. Max A. R. Matthews & Co.

• Decision Date: 22 September 1970
• Docket Number: No. 41454,41454
• Parties: John SWEENEY, Appellee, v. The MAX A. R. MATTHEWS & COMPANY, Appellant.
• Court: Illinois Supreme Court

Page 170

264 N.E.2d 170

46 Ill.2d 64

John SWEENEY, Appellee, v. The MAX A. R. MATTHEWS & COMPANY, Appellant.

No. 41454.

Supreme Court of Illinois.

Sept. 22, 1970.

Howard & French, Chicago (Richard G. French, Chicago, of counsel), for appellant.

George W. Angerstein and Sidney Z. Karasik, Chicago, for appellee.

WARD, Justice.

This court granted the defendant, Max A. R. Matthews & Company, leave to appeal from a judgment of the Appellate Court for the First District, which had affirmed a judgment of the circuit court of Cook County. The circuit court had entered a judgment for the plaintiff following a jury verdict for $45,000 in his favor.

The plaintiff, who was employed as a carpenter by Hartman-Sanders Company, was injured when using special purpose 'concrete' nails which had been purchased from the defendant. When he struck the nails with a hammer, the heads of the first several broke off and were thrown across the room in which he was working. As he struck either the fourth or fifth nail, it shattered and a piece of it struck his left eye, causing serious injury.

A comprehensive statement of facts and issues before the appellate court appears in the opinion of that court. (94 Ill.App.2d 6, 236 N.E.2d 439.) Several questions presented in the appellate court have not been advanced by the defendant here, and therefore will not be considered in this opinion. Too, theories of liability, based on negligence and warranties by a seller were raised in the trial court, but on appeal the question has been limited to the tort doctrine of strict liability as it applies to the seller of a defective product.

Contributory negligence is not a bar to recovery in strict product liability tort action in Illinois. (Williams Manufacturing Co. v. Brown, 45 Ill.2d 418, 261 N.E.2d 305.) However, while, as stated in Brown, it is not necessary that a plaintiff in such an action plead and prove his exercise of due care, recovery will be barred if the defendant, by means of an affirmative defense, can show that the plaintiff knew the product was in a dangerous condition and proceeded to use the product in disregard of this known danger. While this court has recognized that whether there was such an assumption of risk by a plaintiff in a given case may be determined largely by subjective evidence, it has made it clear that the trier of fact is not required to accept a plaintiff's account of the incident concerned. In determining this question a trier of fact may consider such factors as 'the user's age, experience, knowledge and understanding, as well as the obviousness of the defect and the danger it poses, * * *.' Williams Manufacturing Co. v. Brown, 45 Ill.2d 418, 261 N.E.2d 305.

Against this background we consider now the defendant's contention, based on a claimed assumption of risk by the plaintiff, that the trial court erred in refusing to grant its motion for a directed verdict, which was made at the close of all the evidence and which was renewed in the post- trial motions. The appellate court (at 94 Ill.App.2d 6, 16--17, 236 N.E.2d 439, 444) described the evidence on the question of an assumption of risk by the plaintiff. The court said:

'* * * The plaintiff had used concrete nails prior to the accident and knew that they were hardened nails which would not bend like ordinary ones. The day before he was injured he had been sent to purchase hardened square-cut nails; he found them unsatisfactory because they would bend and not penetrate mortar, so he returned them. However, he continued to use the concrete nails despite the fact that they too were unsatisfactory. He testified that as he was striking the nails the thought entered his mind that either he was doing something wrong or that something was wrong with the nails themselves. Nevertheless, this did not deter him. Nor did he stop to put on safety glasses--although Hartman-Sanders had instructed its carpenters to use them when hammering concrete nails. While the glasses were not at hand, they were available at the employer's nearby place of business. Another carpenter was nailing furring strips in the same room with the plaintiff. He started using the nails before the plaintiff did and testified that every second nail he struck broke and flew over the room.

'The plaintiff's apparent indifference to consequences might have justified a directed verdict against him were it not for other factors which made his conduct a jury question. He was nineteen years of age and had worked as a carpenter for only a short time. Although he held a journeyman's card he had never worked as an apprentice and had no experience as a carpenter before being employed by Hartman-Sanders. He had used concrete nails before the accident but none had broken and he thought they could take more abuse than other nails. He and the other carpenter were working on opposite walls; his own assignments took him out of the room much of the time and he was unaware that the other man was experiencing trouble with the nails. He said that as far as he knew safety glasses were not required. He never saw the carpenters with whom he worked use them and the older, more experienced carpenter working in the room with him was not using them the afternoon of the accident.'

We do not consider that this evidence shows clearly an assumption of the risk by the plaintiff which should have barred a recovery. Applying the standard we set in Pedrick v. Peoria and Eastern Railroad Co., 37 Ill.2d 494, 229 N.E.2d 504, we cannot say that, viewing the evidence in its totality, it so overwhelmingly favored the defendant that a jury finding for the plaintiff on this issue could never stand. Accordingly, the trial court did not err in denying the defendant's motion for a directed verdict.

The defendant also claims error by the trial court because of its refusal to give the jury either of two instructions which the defendant offered on the issue of assumption of risk. The tendered instructions were modified versions of Illinois Pattern Instruction 13.01 and Illinois Pattern Instruction 13.02, and, the defendant says, correctly expressed what he had to show to establish here the defense of assumption of risk.

The first offered instruction, based on Illinois Pattern Instruction 13.01, stated: 'First, that the dangers involved were the dangers that ordinarily accompany the activities undertaken by the plaintiff. Second, that the plaintiff knew these dangers existed and realized the possibility of injuries from them or in the exercise of ordinary care would have known the dangers existed and realized the possibility of injury from them and entered into the activity voluntarily. Third, that some one or more of these dangers were the cause of plain...