*1 376, any allegedly Ind. occurring errors at polling may be waived. COMPANY, AMERICAN OPTICAL Company
Appellant represented by Service counsel at and Warner during the trial polling jury. (Defend Company, Appellants Lambert objected Counsel at no time any discrep- Below), ants ancy jurors' between the verdict written responses upon being and their asked indi- vidually. WEIDENHAMER, Appellee Chris M. (Plaintiff Below), sentencing hearing,
At the appellant, in counsel, presence was asked judge any legal if he had cause or reasons
why judgment pronounced. should not be Company, International Harvester gave However, no reason. in his Mo- (Defendant Below). Appellee Error, tion to question Correct is raised 1283S448, Nos. for the first time. 2-1276A462. juror The affidavits of one, Bowles, number Brenda J. attor- Supreme Court of Indiana. ney law, apparently at was neither a juror cause, attorney nor an in this are Dec. 1983. pursuant 59(H). attached to Ind.R.Tr.P. Rehearing Denied Feb. testimony
Affidavits or jurors impeach
cannot be considered to their ver State, (1982) Ind.,
dict. Solomon v. 570; State,
N.E.2d Stinson v. 699; State, Ind. 313 N.E.2d Stader v.
(1983) Ind.App.,
ate an jury intolerable situation and no
verdict lasting would ever be or conclu (Citations omitted.)
sive." Wilson v.
State, (1970) 585, 591, 253 Ind. 255 N.E.2d
817, 821. We therefore refuse to consider juror's resolving affidavit in this issue.
The affidavit of Bowles is of no value suggest
other than to that a situation arose appellant used, might have but failed
to avail himself of the opportunity.
Upon polling jury, judge obviously
trial did not nega discern a response juror
tive number one.
can reasonably also be inferred that neither
did defense counsel see dissent since objection lodged. say We cannot discretion,
the trial court abused its or that erroneously jurors determined the agreement upon their verdict. things trial court is in all affirmed.
All Justices concur. *2 Bar- Clifton, Jr., Lyons, F. John M. John Wayne, McNagny, Fort
rett, & Barrett War- Optical Co. American appellants Lambert Co. ner Suedhoff, Hunt, Suedhoff, Jr., J. Carl Lee, Wayne, for Fort Borror, & Eilbacher Co. Service appellant U.S. Williams, Col- William L. Sherrill Stephen Colvin, Fort Snouffer, vin, Halle & M. Weidenham- appellee Chris Wayne, for er.
PRENTICE, Justice. petition us is before This cause Optical defendant, appellant, American of Lambert of Warner Company, a division "American") (hereinafter called Company, Appeals, the Court of from for transfer affirmed, part, District, which Fourth reversed, judgment part, plain- awarding damages to court trial a co- American and tiff, against appellee, Company, defendant, Safety Service "U.S."). decision (hereinafter called ap- Appeals the Court opinion of N.E.2d 606. pears at 404 granted is now to transfer petition 11(B)(2)(f) in that Ind.R.App.P. pursuant ruling prece contravenes decision said holding that a manufac this court dent of that is danger duty to warn has no turer Company v. Ru Bemis open and obvious. (Rehear Ind., bush, (1981) 427 N.E.2d 2/10/82). ing denied from court arose in the trial The action by Plaintiff received eye injuries severe large metal working at (Appellee) employer, Internation- for his turning lathe (hereinafter called Company al Harvester "Harvester"). also named Harvester was co-defendant, judgment its motion for but evidence, the conclusion filed at on evidence, was sustained. Plaintiff's ruling has not been of that correctness appeal. Like motions challenged on by U.S. were overruled. American and tion; wearing hence we need not concern ourselves occurred, right when the accident identity with the of the manufacturer. when it was struck a severe broke complaint was based castings in blow a hoist used to lift multiple Fragments negligence, theories of out of lathe cradle. eyeball implied the broken lens cut his and resulted warranty breach of merchanta *3 permanent impairment in substantial and bility particular and purpose, fitness for a of his vision. express warranty breach of and strict la- bility in tort. in is axiomatic that order At the time of the accident and for sever- impose liability upon any to defendant un thereto, years prior employees al Harvester theories, der foregoing it was factory required safety in the were to wear upon prove, incumbent by Plaintiff to a glasses working, and it furnished evidence, preponderance of the that his in glasses purpose. glasses for that so jury proximate was the result of the breach furnished of and consisted frames lenses by of some owed him one or more of by manufactured and sold to Harvester by This, both American and U.S. The lenses the defendants. he failed to do. "To defect, prove a plaintiff required is not by were held in the frames friction. All to frames, customary certainty possible lenses fit all and it eliminate with all was causes lenses, replace damaged to scratched or accident; an of it is sufficient if the evi time, from time to reasonably improper with new ones to dence eliminates han complete utilize the old frames. Both dling product by or misuse of the others manufacturer, permitting glasses replacement pro- than the thus lenses were through "safety operated vided crib" jury reasonably to infer that it was more by employees. probable product than not that Most frames was plastic, employees paid for which the authority defective. But there is also to charge. a small But initial lenses and both requirement showing the effect that the of replacement by lenses were furnished Har- by cannot a defect be satisfied reliance on vester at no cost to the workers. ipsa loquitur." the doctrine of res 63 Am. § Liability 2d Products complaint alleged that the bro- Jur. ken lens was defective had been manu- Appellant correctly has cautioned us that by by U.S., factured either American or determining whether or not the trial postulates, appeal, on that inasmuch as denying court erred in the motions of allegedly his evidence reflects that the de- judgment upon American and U.S. for by fective lens was manufactured one or evidence, governed by we are the rules defendants, the other of such the burden Co., applied Mamula v. Ford Motor upon prove was each to that it did not do so 179, 181, Ind.App. 275 N.E.2d burden, if and that neither carries that 849: may both be held liable. The Court of appeal only the "'On we will consider Appeals respond upon did not this issue party evidence most favorable to the but, instead, determined that Plaintiff was against whom the motion for directed by testimony bound his own that he was in verdict was made and all reasonable wearing supplied frames and lenses (cita ferences from such evidence'" American when the accident occurred and omitted.) tions that, therefore, the trial court should have "'It where there is a is total ab- judg- sustained the filed motion legitimate sence evidence or inference- ment the evidence. After a detailed issues, plaintiff upon es in favor of or evidence, review of all of Plaintiff's we pressed agree be hard that his where the evidence is without conflict would susceptible of one inference and is testimony unequivocal" was "clear and wearing that he was American and that inference in favor of the defend- ant, However, may give perempto- reach court lenses at time. we omitted.) (citations ry instruction.'" decision herein the issue of causa- our them to envelope delivered however, ap them an citation, not, by this We do safety department. the Harvester Determin said there. that was prove of all sufficient is not evidence whether safe designated Berry a union Alvin requires both a proffered purpose factory. In accord ty committeeman analysis with qualitative capaci quantitative in that responsibilities with his ance determining wheth purpose the avowed the accident the seene of ty, he went reason, said, with arrived, Plaintiff can be not it er or investigate. When op If thereby fulfilled. purpose was such there, found sixteen but he reason, could, posite conclusions glass on eighteen pieces broken the evi drawn, had be said it cannot then and concluded the floor key word insufficient. dence eye injury. bits an sustained variously worded our in all of present is a match the size of ranged in size "from expressly, if not inference put explanations, a dime." half head to about *4 Quantitatively, is "reasonable." placed envelope and fragments in an glass absent, only that is if it is only may fail supervisor's desk.1 safety on the them Qualitatively, at all. is none there when had been Plaintiff lathe at which said, it cannot be however, fails when long feet approximately ten working was inference reason, intended the with at its feet wide approximately four was therefrom; this drawn may logically be cutting cast- iron had been Plaintiff base. an absence either because may occur carriers, differential ings, called the or because witness credibility of the eighteen castings are about lathe. there may not drawn inference intended weigh approximate- in diameter and inches The use speculation. undue from without upon They are stacked ninety pounds. ly "proba as "substantial" of such words lathe the five feet behind pallets about articulating the method are useful tive" lifted, cutting and are the prior to operator attention they focus our ology, because in the lathe positioned transported and issue aspects of the qualitative the electrically operated hoist. of an means subjectivity is objectivity where and succor castings are positioned, the properly When go. to wont hand of a by means in the lathe secured how respect to of the evidence All con- they are still wrench while operated from Plaintiff came occurred the accident pro- operating Proper the hoist. nected to his witnesses. castings be re- the required that cedure so secured the hoist when leased from the acci- to eye no witnesses There were position returned to hoist be then that the himself, plaintiff, dent, than the other opera- how it the not know feet behind that he did three approximately he testified the lathe secured working at castings then further He was are happened. tor. The chuck, on is located which the lathe feet, his suddenly knocked off he was when "chuck electrically operated excruciating pain spindle, and felt the floor fell to bleeding. secured is they are so eye, which was not until right jaws," and his casting against of the revolving action the Jr., was Thompson, Darrell cutting tool commenced. the the dis- Plaintiff to He escorted foreman. inspect- having immediately Thompson, after then returned Witness pensary pre- scene, being familiar with ed the and, his was the accident scene of and hav- procedures operation attempted to de- scribed lathe responsibility, designated such performing Plain- observed He found it occurred. how termine The left floor. Plaintiff had accident- glasses on the work, safety concluded tiff's chuck, had been intact, right inadvertently one activated ly but or prematurely, while causing it to rotate such up glasses and picked He broken. still positioning he was find, casting which put as he could of broken pieces parties testing delivered bility of the of the items was no evidence There Safety Department. Harvester responsible the unavaila- appeal were pieces had large enough tension, to be tested for hooked to the hoist. Under such jerked casting, the hoist was loose from the heat equipment. treatment with their Such particles probably could be tested with and Plaintiff was struck the hook. sophisticated more equipment. Witness Cobble testified that he was a Plaintiff testified that the accident oc- employee at the time of the acci- dent and had for approximately ten lathe, curred while he was at at work charge crib, years. safety He was phase but he did not know what safety supplies, including from which cutting cycle safe- he was in. He was hit ty glasses supplied to the workers. once. He did not know what hit said that it could object glasses crib, have been the safety When came to the them, printed warnings were placing affixed to but was removing into or from the floor, lathe. He was knocked to the they prior but he delivering were removed injuries had no facial glasses warnings bruises. to the workers. Such impact wearing plastic advised lenses were resist- framed pitted ant but not unbreakable and insignia frames, the American on the scratched purchased lenses were unsafe and should be he had from the Harvester safe- crib, ty when the accident occurred. He replaced. The witnesses had seen broken factory lenses in the previously purchased and had had pairs at least four or five broken some with a hammer in demonstra- such from the crib between June of regulations tions for workmen. September OSHA re- 1969 and the date of quired lenses for industrial use the accident. He knew that scratched or *5 pitted be between 83.1mm. and 8.8 mm. thick. replaced lenses could be at no cost to him, but he could not remember whether or Witness Gross testified that he was the exchanged any prior he had laboratory manager Longe Optical Com- accident. pany, safety a manufacturer of lenses and qualified expert as an in that field. Plaintiff believed that the * * *" explained procedures unbreakable, the employed in job, "within the manufacturing testing safety glasses. and "Q. thought they You that were un- impact by Lenses are rendered resistant breakable under cireumstanc- heating them, cooling but no lens is es? proof. ap- unbreakable or shatter OSHA "A. I they don't believe would stand a proves a thickness of 8.0 mm. to 8.8 mm. this, things bullet or like but within for industrial lenses. All heat treatment well, job, the I like said there was processes principle, work on the same warning, nobody no said lenses subjected impact must be to an test out, you got careful, watch to be dropping which consists of a steel ball 1%" this was never said." weighing diameter and 2.4 ounces onto acknowledged having signed Plaintiff height fifty the lens from a inches. Harvester's Exhibit "B" two one-half These are national "every- standards used accident, having weeks after the it by everybody." where by stipulation identified and admitted dur- safety slightly Plastic lenses are more ing Harvester's cross-examination of him. glass lenses, resilient than but OSHA stan- having He denied made the statement distinguish dards do not between the two. having therein attributed to him or read type lenses of whatever are not document, however, the and stated that it protect intended to the wearer from all prepared by prior had been forces, regardless magnitude. They office, his arrival at its signed and that he only strong, can be made so and if the request. it at Harvester's "B" Exhibit National Standards are met that is all that copy of an Industrial Board Form 12No. can be done. "Agreement Employee Between Em- ployer Compensation" As to and contained witness examined some of the particles eye removed from Plaintiff's but following the statement toas how the acci- evidence, if and such presents, he nesses positioned "Employee had occurred.
dent contra- him unless adverse, binding on a hoist. lathe with is in a carrier a differential C.J.S. 32A by other evidence." chuck, hit dicted the engage As he reached § 1040(1). spindle causing the Evidence jog button spindle the hoist jerked the in turn revolve which to con- evidence offered The Plaintiff struck hook loose. hook cir- testimony and related the above tradiet eye." right by his own presented evidence cumstantial having acknowledged himself, none of which by also Plaintiff witnesses "A", admit- also Exhibit as prior statements signed Harvester's his own conflicted His during had occurred. eross-examination accident the stipulation to how ted Board Industrial know how an he did not testimony It was of Plaintiff. Employee Injured difficulty, be may, happened "Application Form accident * * * prepared Compensation," For Claim contradict true, it does not taken attorney, testified, his own recited; although he to before sworn by and year and examination, one Colvin, on June redirect point, on Mr. one at occurred accident way, after happened months nine not have it could filing of prior to testimony it is clear months and three demonstration his applica- In that cause. in this complaint the nature disputing he was not oath, that it had caused under only that he represented, mishap but tion, operating "while spindle, occurred accident lathe activating prematurely injured he was machine when lathe was activat- the lathe how is immaterial 1 inch diameter long and bar, 8 feet steel to Ameri- attributed ed, cannot be since safety glasses, shatter- right struck or U.S. can * * leng *." evidence, Na- Plaintiff's Neither admitted 4 was No. Exhibit Plaintiff's glass- industrial tional Standards Bix- A. of James deposition ancillary to the the wearer anticipate that es do not performed ler, ophthalmologist require forces and from all protected following the eye surgery upon a 2.4 force of withstand lenses *6 report copy of the is a The exhibit injury. dropped ball, in diameter 1%" steel ounce had attended physician inches, contradicted. fifty height of from a which room to emergency hospital in the conclusion, too, but one It, permits from the directly taken had been reason- cannot being that following contains dispensary and all expected to withstand ably be him in hoist hit a "States statement: industrial in an might occur forces eye." The place. work Plaintiff's such as plant revealed hap- the defendants the accident one of of how of the issue evidence Upon hook or bar conflict is without force the evidence pened, to that conclusion, i.e., equal lens was one struck leads to but drop of the aforementioned a created struck a it was when lens broke bar, compo- feet, by a or steel by hook height of 241 a severe blow from ball steel from hammer sledge used operated pound hoist electrically drop a five of of an nents hammer sledge pound differential ninety pound or a ten feet conveying the seven for Plaintiff, hasten We feet. behind and one-half position three from a from carriers influence cra- not the lathe evidence does onto that this and down to add up, overhead not bound jury hurled was was component hoist our decision. dle. But this spinning though of it unrefuted. it, was even the lens when against It was loquitur it case. ipsa activated a res carrier was is not differential forth come Plaintiff to hoist, incumbent caused which secured still was proba- of evidence strain. substantial some loose under with it to break defective, the lens was rule, vouches party a tive value general a "As could be circumstances which, and wit- under the evidence credibility of
187 only by done evidence that the force that "Moreover, duty because the to warn has broke his lens one was that it could reason- genesis in its a condition danger, of there ably expected have been to withstand. duty respect is no such with product to a This he failed to do. is, fact, which as a matter danger- ous. Appeals Our Court of determined that that the this dence on our determination that the warn- conclusion, substantial after a review of the evi- defective: presented "We base totally "It has also been said that it would be [*] unreasonable to # # [*] require a that a [*] itself, if manufacturer given, against every in fact one warn injury was was the product." defect in the disagree might We mishap with ensue from * * analysis court's entire in regard, product, use of its p. 59, *." Id. §
but our resolution
require
does not
us to
determine
warning
whether or not a
authority
There is also
to the effect that
so,
given
if
whether or not it was
duty
there is no
to warn where there is
adequate.
require
Neither does it
us to
possibility
danger
remote
determine the effect
the case of the
product
the use of the
question.
Bish v.
removal, through no fault of a manufactur-
Employers Liability
Corp.,
Assur.
236
er,
warning
of a
adequacy
debatable
(5th Cir.1956);
F.2d 62
Sears,
v.
Pontifex
placed upon
which it had
product.
its
Co.,
(4th Cir.1955).
Roebuck &
these into the stream of commerce warnings attached. The tool crib man plant, stripped
at the warning tags selling
stickers off before employ- them to
ees. That act had to occur before the
glasses could be used. That act in this
case an intervenor however caused the
glasses to reach the ultimate user in defec- form, ie.,
tive necessary without warning
tags and stickers. I point would out here
particularly the one which stated that
scratches on the protection. lens reduced
In my judgment, consequence as a
detachment, insufficient evi-
dence that the were defective be- inadequate
cause of warnings by the manu-
facturer. I therefore concur in the result
reached majority. Court's
HUNTER, J., concurs. LIMP, Appellant
Russell L.
(Defendant below), Indiana, Appellee
STATE of (Plaintiff below).
No. 981S242.
Supreme Court of Indiana.
Dec.