Taylor v. Carborundum Co.

• Decision Date: 20 February 1969
• Docket Number: Gen. No. 52330
• Citation: 107 Ill.App.2d 12,246 N.E.2d 898
• Parties: Fred L. TAYLOR and Ralph Rosenberger, Plaintiffs-Appellees, v. The CARBORUNDUM COMPANY, a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 898

246 N.E.2d 898

107 Ill.App.2d 12

Fred L. TAYLOR and Ralph Rosenberger, Plaintiffs-Appellees, v. The CARBORUNDUM COMPANY, a corporation, Defendant-Appellant.

Gen. No. 52330.

Appellate Court of Illinois, First District, Third Division.

Feb. 20, 1969.

Rehearing Denied May 1, 1969.

Caryl P. Bonotto, John W. Kearns, Jr., Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, for defendant-appellant.

Lawrence P. Hickey, Roger J. Boylan, John J. Kennelly, Sidney Z. Karasik, Chicago, for plaintiffs-appellees.

DEMPSEY, Justice.

The plaintiffs, Fred Taylor and Ralph Rosenberger, were injured when a grinding wheel manufactured by the defendant, The Carborundum Company, shattered. They commenced separate actions against the defendant which were consolidated for trial. The jury returned a verdict in their favor and awarded Taylor $50,000.00 and Rosenberger $1,500.00 damages.

The defendant's major contention is that it is entitled to an outright reversal because of the plaintiffs' failure to prove certain elements necessary for recovery under a strict products liability theory. In the alternative, it points to alleged irregularities which occurred in the course of the trial and requests that the cause be reversed and remanded for a new trial because of them. The extent of the plaintiffs' injuries and amount of damages awarded them are not questioned.

On the day of the accident, July 23, 1959, Taylor and Rosenberger were employed as ironworkers by the City of Chicago and were engaged in general repair work on a bridge over the Calumet Canal. Both were experienced ironworkers, having served several years in the trade. Shortly after lunch the plaintiffs assembled tools to be used in their work. Taylor withdrew a sledge hammer from a toolbox and sawed off a portion of its handle. This was done so that the hammer could be utilized in close-quarter situations. After the sawing, there remained a few rough edges on the handle which needed to be removed and Rosenberger suggested using a grinding machine for that purpose. Taylor picked up a nearby portable, pneumatic machine which had mounted on it an emery grinding wheel. The wheel, eight inches in diameter and about an inch thick, was made by Carborundum. Taylor ran the grinder for a few seconds to clear water condensation out of the air hose and noticed nothing unusual about the machine. It was running normally at its full speed, which was 4,500 revolutions a minute. He then placed the grinder on a keg for support and reactivated it. Rosenberger faced the side of the wheel with the hammer in his hands; before he could bring its handle into contact with the spinning wheel, or just after he had done so, the wheel came apart with such force that both men were knocked down.

Rosenberger was not seriously injured. Part of the wheel struck his leg; the impact forced him to the ground and he suffered a broken finger in the fall. Taylor was not as fortunate. Another part of the wheel tore into the upper calf of his left leg. The peroneal nerve was lacerated which has resulted in a complete and permanent paralysis of the anterior portion of his ankle and foot.

Shortly after the accident the plaintiffs' foreman tested the grinding machine to see if it still functioned. He found that it did and that it operated properly. All of the wheel except its hub, which was held in place by a washer and nut, had separated from the machine. The foreman was able to locate only a portion of the wheel and he found this piece about forty feet from the site of the accident.

The original complaint was premised upon a breach of warranty theory. At the close of their case the plaintiffs were permitted to file an amended complaint containing two counts: strict liability and negligent failure to warn. The trial court did not err in allowing the amended complaint to be filed. See Sweeney v. Matthews, 94 Ill.App.2d 6, 236 N.E.2d 439 (1968).

In order to sustain a claim against a manufacturer under a strict liability theory a plaintiff must prove that his injury resulted from a condition of the product, that the condition was unreasonably dangerous and that it existed at the time it left the manufacturer's control. Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965).

To prove the grinding wheel defective, the plaintiffs called as an expert witness a qualified chemist. The witness testified that he examined the piece of the wheel that had been recovered and subjected it to four tests--only one of which was significantly relevant to his ultimate opinion that the wheel was defective. This test was conducted by removing three fragments from divergent areas of the larger piece, weighing them, placing them separately into a container of water and measuring how much water was displaced. In this manner the density of each piece was ascertained and the average density computed. The fragments differed in density. One was more and two were less dense than the average. Based upon this test it was the opinion of the witness that there existed a causal relationship between the wheel's falling apart and the variations in the wheel's density.

The defendant objected to the competency of the witness in the trial court and repeats the objection in this court. It is the defendant's position that the witness did not qualify as an expert and without his testimony there was a complete failure of proof that the grinding wheel was defective when it left the defendant's control.

The test of competency for an expert is whether or not he exhibits sufficient knowledge of the subject matter to entitle his opinion to go to the jury. Piacentini v. Bonnefil, 69 Ill.App.2d 433, 217 N.E.2d 507 (1966). A trial court has broad discretion in determining if a witness has been qualified as an expert. Northern Illinois Gas Co. v. Wienrank, 66 Ill.App.2d 60, 213 N.E.2d 411 (1965). The witness was a chemist with many years experience in the testing of materials and had examined grinding wheels on prior occasions. He was offered as an expert only in the field of chemistry and his testimony on direct examination was limited to this area. It was not necessary, as the defendant claims, that the witness also possess expertise in the manufacture and use of grinding wheels. The trial court did not abuse its discretion in permitting the witness to testify and did not err in denying the defendant's motion to strike his testimony.

In further support of its position that there was a failure to prove the wheel defective, the defendant has directed our attention to two product liability cases decided in favor of the defense: Shramek v. General Motors Corp., 69 Ill.App.2d 72, 216 N.E.2d 244 (1966) and Jakubowski v. Minnesota Mining and Manufacturing, 42 N.J. 177, 199 A.2d 826 (1964). In each of these cases the allegedly defective product was unavailable at the trial and the plaintiff was unable to present direct evidence that a defect existed in the product when it left the manufacturer's control. He was also unable to negate other possible causes of the product's failure. The discussions in both opinions pointing to possible causes of the product failure other than a defect in manufacture were premised upon the absence of direct proof of a defect. Such is not the situation in the instant case where, by means of expert testimony, direct proof of a defect in the product was adduced with the reasonable inference left to be drawn by the jury that it came into existence at the time of manufacture. There was, therefore, sufficient evidence to allow the question of a defect to go to the jury, for a plaintiff is not required to prove his case beyond a reasonable doubt or disprove every theory supporting a cause of failure other than the one alleged. Foster v. Union Starch & Refining Co., 11 Ill.App.2d 346, 137 N.E.2d 499 (1965).

The defendant also argues that the plaintiffs failed to prove another element necessary for recovery: namely, that the wheel was used in the manner and for a purpose for which it had been designed and intended.

The plaintiff presented adequate proof that it was customary to use grinding wheels to smooth tool handles. Taylor, Rosenberger and two other ironworkers testified that it was customary and usual in their trade to use grinding wheels to remove rough edges from hammer and ax handles. There was no evidence to the contrary. The plaintiffs also presented proof that the disc was correctly mounted on the machine. Taylor testified that he had mounted similar carborundum wheels and that there was nothing unusual about the wheel's position on the machine. Additional proof was offered on this subject but it was objected to by the defendant. The plaintiffs called as a witness the ironworker who had placed the wheel on the machine but the defendant objected to his testifying because his name was not among the witnesses listed in the plaintiff's answer to the defendant's interrogatories. After a conference in chambers the witness was withdrawn.

The defendant argues that the plaintiffs were using an incorrect wheel on an antiquated machine. According to the defendant it was clearly shown that the plaintiffs used a vitrified wheel eight inches in diameter with a recommended maximum speed of 3,600 revolutions per minute (rpm) on a machine which operated at 4,600 rpm; that only vitrified wheels up to seven inches in diameter were supposed to be used on the machine and that the machine was twenty years old although its recommended life was only five years.

The evidence, however, was not as clearcut on the above two points as the defendant maintains. First, as to the machine: the machine was not introduced into evidence; it had been transferred to other jobs and could not be located. The absence of the machine complicated the trial and the complication was aggravated by an observation made by the plaintiffs' attorney in his opening statement. He told the jury that while the machine was not available, photographs of...