holding it not erroneous to instruct on strict liability instead of implied warranty, where violation of strict liability standard necessarily results in violation of implied warrantySummary of this case from Sundberg v. Keller Ladder
Docket Nos. 19957, 22207.
Decided March 23, 1976. Leave to appeal denied, 397 Mich ___.
Appeal from Wayne, Harry J. Dingeman, Jr., J. Submitted December 4, 1975, at Detroit. (Docket Nos. 19957, 22207). Decided March 23, 1976. Leave to appeal denied, 397 Mich ___.
Complaints by Mack Dooms and Willie Sanders against Stewart Bolling and Company, a manufacturer of a machine, and Michigan Mutual Liability Insurance Company, a workmen's compensation carrier for plaintiffs' employer, for damages for injuries incurred when plaintiffs' hands were caught in the machine. The cases were consolidated. Judgment for plaintiffs against defendant Stewart Bolling and Company only. Defendant Stewart Bolling's motion for a new trial was denied, and defendant Stewart Bolling was ordered to stipulate to an additur as to plaintiff Sanders or proceed to a new trial on the issue of damages only. Defendant Stewart Bolling appeals. Affirmed.
Rains, Block Dean, for plaintiffs.
Harvey, Kruse Westen, P.C. (by James D. Hunter), for defendant Stewart Bolling Company.
Martin, Bohall, Joselyn, Halsey Rowe, for defendant Michigan Mutual Liability Insurance Company.
Before: J.H. GILLIS, P.J., and ALLEN and M.J. KELLY, JJ.
The Court is presented with relatively significant questions pertaining to the law of product liability in Michigan. The circumstances foreshadowing this appeal began when plaintiffs, Messrs. Dooms and Sanders, suffered severe hand injuries on a rubber milling machine during the course of their employment at Detroit Rubber Company on 3 June 1969. Each plaintiff commenced separate suits against Stewart Bolling and Company (the manufacturer of the machine) and Michigan Mutual Liability Insurance Company (the insurer of plaintiffs' employer). The cases were subsequently consolidated. Plaintiffs claimed Stewart Bolling was liable on the grounds that the machine did not have adequate safety devices incorporated into the design, and that the safety trip cable on the machine was inaccessible to the operator at critical points. Plaintiffs claimed liability against Michigan Mutual on the theory that it had breached its contract of workmen's compensation insurance in failing to warn of the unsafe condition of the machine after having undertaken an inspection. Proof was presented on both sides, and the jury returned verdicts against Stewart Bolling — $300,000 for Dooms and $50,000 for Sanders. It rendered a verdict of no cause of action in favor of Michigan Mutual. Stewart Bolling moved for a new trial which was denied. Plaintiff Sanders filed motions for additur and new trial. The trial judge ordered defendant Stewart Bolling to stipulate to an additur of $150,000 as to Sanders or proceed to a new trial on the issue of damages. This appeal followed.
It seems that as Dooms, the regular operator, was running the machine, his left hand adhered to sticky rubber and became entangled in the rollers of the machine. He went for the safety trip cable but was unable to reach it. Sanders responded to Dooms' yells, tried to render assistance, and his right hand became caught in the machine. Eventually, Dooms manipulated the position of his body so as to reach the safety cable and stop the machine; however, not before both men had suffered serious physical harm.
Was it reversible error for the trial court in a product liability suit to instruct on strict liability?
Stewart Bolling claims error occurred when the trial judge instructed the jury on three possible theories of recovery: negligence, implied warranty, and strict liability. It argues that our Supreme Court has never suggested that one could recover for personal injury by asserting a claim of strict liability against a manufacturer, and maintains that the instruction on strict liability amounted to directing verdicts for plaintiffs.
Plaintiffs refer the Court to the substance of the instruction. They argue essentially that it isn't prejudicial error for a trial judge to put a strict liability label on an otherwise recognized cause of action.
It is undisputed that in Michigan a plaintiff may proceed under at least two tortious theories of recovery in product liability: negligence and implied warranty. Spence v Three Rivers Builders Masonry Supply, Inc, 353 Mich. 120, 135; 90 N.W.2d 873 (1958), Manzoni v Detroit Coca-Cola Bottling Co, 363 Mich. 235, 241; 109 N.W.2d 918 (1961), Kupkowski v Avis Ford, Inc, 395 Mich. 155; 235 N.W.2d 324 (1975). However, the debate continues with respect to whether the product liability theory styled strict liability in tort exists in this state. In Baker v Rosemurgy, 4 Mich. App. 195, 200; 144 N.W.2d 660 (1966), the Court seems to have recognized the theory:
"Plaintiff's theory of strict liability in tort falls also. Even if the test set forth in 2 Restatement of the Law of Torts, 2d § 402a, for this special form of liability were applied to a rifle, plaintiff's own conduct again defeats a cause of action."
Moreover, a Federal court and legal commentators refer to Michigan as a strict liability jurisdiction. On the other hand, a recent panel of this Court in Rutherford v Chrysler Motors Corp, 60 Mich. App. 392, 394 fn 1; 231 N.W.2d 413 (1975), noted that the doctrine of strict liability in tort is nonexistent in Michigan. In Cova v Harley Davidson Motor Co, 26 Mich. App. 602, 612; 182 N.W.2d 800 (1970), the Court appeared willing to assent to its de facto existence but disapproved of the label "strict liability". Throughout the opinion in Williams v Detroit Edison Co, 63 Mich. App. 559; 234 N.W.2d 702 (1975), this Court used the terms implied warranty in law synonymously with strict liability in tort, noting that which of the two labels ought to be used need not be decided to resolve the case. Finally, we mention in passing that the Michigan Supreme Court has not directly endorsed any tortious theories of recovery in product liability beyond that of negligence and implied warranty.
We believe that sound reasons militate against adding another theory to the law of product liability in this state. Therefore, we refuse to sanction an instruction on strict liability in tort in a product liability case. First and foremost, we believe such a theory is unnecessary. As will be shown, it appears inconceivable that a plaintiff might fail to recover under our tort warranty of fitness theory, yet recover under a strict liability in tort theory. Secondly, as emphasized in Cova, supra, and Chestnut v Ford Motor Co, 445 F.2d 967 (CA 4, 1971), adding more labels most likely enhances the chance of causing confusion. It would seem that the law of product liability is plagued by semantical pitfalls, and the Court does not desire to contribute to this legal quagmire.
One can fully appreciate the wisdom of Judge (now Justice) LEVIN in Cova v Harley Davidson Motor Co, supra, 614, when he suggests that:
"Indeed, it might be helpful if we abandoned the continued use in this context of our present and misleading terminology of warranty and representation, express and implied, and strict liability in tort, and simply refer to the manufacturer's liability by the neutral term `product liability'."
The question remains whether the giving of an instruction on strict liability in the instant case requires that we reverse. We begin with the instruction involved:
"We come now to the third theory upon which the plaintiffs bring this suit * * * [t]hat has to do with this matter of strict liability of a seller of a product for physical harm to the user or consumer. It's the law that anyone who sells any product in a defective, unreasonably dangerous condition to the user, or consumer is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to the property: first, the seller is engaged in the business of selling such a product; and, secondly, that it's specifically expected to, or does reach the user or consumer without substantial change of the condition it's sold. The rules which I have just given you apply, although first, the seller has exercised all possible care in the preparation and sale of his product; and secondly, that the user or consumer has not bought the product from, or entered into any contractual relations with the seller. Now, in your consideration of the foregoing, you should apply the instructions heretofore given in connection with the burden of proof and proximate cause. In negligence cases, with regard to the claim of product defect, it is the law of our state that the plaintiff must show you that there was, in fact, a defect in the product at the time it left the possession and control of the defendant. Therefore, if plaintiff has not proven to your satisfaction that there was a defect in existence at the time it left the possession and control of the defendant, or that any such defect was not a proximate cause of the accident, you should find in favor of the defendant in connection with this theory of the plaintiff. If there has been a modification of the machine from the time it left the possession and control of the defendant Bolling, and that modification was the sole cause of the accident and injury in these cases, or in either case, you should return a verdict in favor of the defendant, accordingly." (Emphasis added.)
The first part of the instruction parallels the language in Restatement Torts 2d, § 402A. The remainder described those elements a plaintiff must prove to establish a prima facie case in product liability, irrespective of the theory of liability:
"Common to most products liability cases, regardless of the theory of liability, is the nature of certain proofs required to support a finding of liability. In Piercefield v Remington Arms Co, Inc, 375 Mich. 85, 98-99; 133 N.W.2d 129 (1965), this Court commented on the nature of these proofs.
"`As made clear above, a plaintiff relying upon the rule must prove a defect attributable to the manufacturer and causal connection between that defect and the injury or damage of which he complains. When able to do that, then and only then may he recover against the manufacturer of the defective product.'
"While the Court in Piercefield, supra, was concerned with a breach of warranty theory, the above elements of liability are equally applicable to a lawsuit sounding in negligence." Caldwell v Fox, 394 Mich. 401, 409-410; 231 N.W.2d 46 (1975).
What distinction, other than defenses, exists between the theory of implied warranty in law, the theory of negligence and strict liability? The key appears to lie in the term defect. When proceeding under a theory of negligence, the element of defect is established by proofs that the manufacturer failed to do what a reasonably prudent person would do or did what a reasonably prudent person would not have done under the circumstances. Under implied warranty imposed by law a defect is established by proof that the product is not reasonably fit for the use intended, anticipated or reasonably foreseeable. See Michigan Standard Jury Instructions, 25.21 and 25.23. Under the strict liability in tort theory in Restatement Torts 2d, § 402A, a product not only must be defective (presumably any defect), it must also be in an "unreasonably dangerous condition". This Court opines that if the condition of a product is unreasonably dangerous as well as defective (strict liability theory) then the product would necessarily be unfit for the use anticipated or reasonably foreseeable (implied warranty in law theory).
The term "strict liability in tort" as used in this opinion and as used in prior opinions (see Williams and Cova, supra) refers to strict liability in tort as defined in Restatement Torts 2d, § 402A. It does not refer to what often is the lay understanding of such term, viz: liability without fault or absolute liability.
We cannot conceive that had the jury found the rubber milling machine to be in a defective and unreasonably dangerous condition, it could still find the machine reasonably fit for the use anticipated or reasonably foreseeable. Conversely, we cannot conceive that if the jury determined the machine was reasonably fit for the use anticipated or reasonably foreseeable (thus rejecting implied warranty) it could nevertheless find that the machine was defective and unreasonably dangerous (thus finding strict liability). As was stated by this author in Williams, supra:
" * * * [T]he application of the doctrine of implied warranty may have the same or substantially the same results as applying the doctrine of strict tort liability. 54 ALR3d at 1083." 63 Mich App at 567.
This is not to say that the scope of strict liability in tort as provided in § 402A of the Restatement equals the scope of our fitness warranty. It does not. A particular product could be unfit for the use intended without being unreasonably dangerous.
Therefore, the Court finds that the instruction on strict liability in tort as well as implied warranty was, at most, redundant, and concludes that the instruction was not prejudicial to defendant. Any prejudice which might have occurred by reason of a lay jury interpreting strict liability as liability without fault — which is precisely what defendant contends did occur — was precluded by the trial court's definition of strict liability in terms identical to the definition used in the Restatement and in prior decisions of this Court. Added support for our position stems from the language of our Supreme Court in Cook v Darling, 160 Mich. 475, 481; 125 N.W. 411 (1910):
"It seems to be a well-settled doctrine in this State that where property is bought for a particular purpose, and only because of its supposed fitness for that, and where articles are bought for consumption, and the vendor sells them for that express purpose, the consequences of unsoundness are so dangerous to health and life and the failure of consideration is so complete that, where there is not an express warranty, there is an implied warranty that the goods are fit for the purpose for which they were bought, and that articles of food are fit for consumption. In such cases the vendor is held to a strict accountability."
See Doelle, Product Liability Law in Michigan, 54 Mich State B J 866, 874 (Nov, 1975).
Is contributory negligence a defense to a theory of recovery based upon the tort warranty of fitness?
Over defendant Stewart Bolling's objection, the trial judge instructed the jury that if it found Stewart Bolling "liable for a breach of implied warranty in regard to the rubber milling machine, then I further instruct you that any contributory negligence on the part of either plaintiff is not a defense". On appeal, defendant takes the position that this is not the law in Michigan, Baker v Rosemurgy, 4 Mich. App. 195, 200; 144 N.W.2d 660 (1966), Casey v Gifford Wood Co, 61 Mich. App. 208, 218; 232 N.W.2d 360 (1975), and that the court erred reversibly when it gave such instruction in lieu of an instruction on plaintiffs' misuse of the machine as requested by defendant. Defendant argues that the record supports negligence on plaintiffs' part. Plaintiffs counter that no reversible error was committed because the defense of contributory negligence is inapplicable to an action grounded upon implied warranty, Kujawski v Cohen, 56 Mich. App. 533; 224 N.W.2d 908 (1974), and because the court instructed that plaintiffs had to establish that there was a reasonable use when a hazardous condition leading to injury arose.
In Kujawski v Cohen, supra, 542, a panel of this Court ruled as follows:
"Contributory negligence, as it is characteristically understood in the common law of negligence, is not a defense to a breach of warranty action. Something more than mere negligence must be shown to bar recovery, something approaching `assumption of the risk' or disregard of known danger. Barefield v La Salle Coca-Cola Bottling Co, 370 Mich. 1, 5; 120 N.W.2d 786, 789 (1963); Baker v Rosemurgy, 4 Mich. App. 195, 200; 144 N.W.2d 660, 663 (1966)."
The Kujawski rule makes sense when it is considered that a defendant's negligence is not pertinent to an action based upon implied warranty. This does not mean that a defendant is precluded from offering evidence to establish misuse of a product:
"[W]arrantors are not to be held as guarantors against injury to consumers resulting from the consumer's misuse of the product." Barefield v La Salle Coca-Cola Bottling Co, supra, at 5.
However, the question of a plaintiff's product misuse as it relates to implied warranty is better directed to the question of proximate cause rather than contributory negligence as that term is defined in an ordinary negligence case. See Annotation, Contributory Negligence or Assumption of Risk as Defense to Action for Personal Injury, Death, or Property Damage Resulting From Alleged Breach of Implied Warranty, 4 ALR3d 501. Also see Imperial Die Casting Co v Covil Insulation Co, 264 S.C. 604; 216 S.E.2d 532 (1975).
If the proximate cause of a plaintiff's injury is found to have stemmed from his own conduct, such as misuse of a product, and not from the product's lack of fitness, he may not recover since the proofs have failed to establish a causal connection between the defect and injury. Casey v Gifford Wood Co, supra, at 218. Moreover, if the failure of a manufacturer to provide a product reasonably fit for the use intended or reasonably foreseen is found to be a proximate cause of the injury to plaintiff, the fact that plaintiff's misuse concurred with the defect to cause the harm will not bar recovery under a theory of implied warranty unless it can be said that plaintiff voluntarily and unreasonably proceeded to encounter the known risk. Baker v Rosemurgy, supra, at 200.
In retrospect this author concedes that when he wrote in Casey, supra, p 218, "Contributory negligence remains a defense. In this regard, we are well aware that the jury may have determined * * * the proximate cause of the injury was plaintiff's own negligence" he inadvertently conveyed the impression that in all implied warranty actions contributory negligence was a defense. As stated in the discussion above the author only intended to state that plaintiff's own negligence, if found to be the cause of the accident, remains a defense.
"Where a person must work in a place of possible danger, the care which he is bound to exercise for his own safety may well be less, due to the necessity of giving attention to his work, than is normally the case." Byrnes v Economic Machinery Co, 41 Mich. App. 192, 202; 200 N.W.2d 104 (1972).
In the instant case, the record is devoid of evidence tending to show that it was the plaintiffs' conduct rather than the defect which caused the harm. Further, the court instructed the jury that to recover under implied warranty plaintiffs had to prove, among other things, "that the rubber milling machine was not reasonably fit for the use or purposes anticipated or reasonably foreseeable by the defendant in one or more of the ways claimed by the plaintiffs", and "that the failure to provide an adequate safety device was a proximate cause of the injury to the plaintiffs". Moreover, it instructed that "if the failure to provide an adequate safety device was not a proximate cause of the injuries" verdict should be for defendant.
We thus conclude that the lower court did not err in instructing the jury that contributory negligence was not a defense to implied warranty, and that the gist of what defendant was trying to get across in its requested instruction on misuse, to the extent the evidence supported it, was adequately covered by the instructions given.
Did the trial court abuse its discretion in granting a motion by one of the plaintiffs for an additur or, in the alternative, a new trial as to damages?
GCR 1963, 527.1(4) permits the court to grant a new trial where the verdict is "clearly or grossly inadequate". GCR 1963, 527.6 provides:
"When a finding is made that the only error in the trial is the inadequacy or excessiveness of the verdict, the court may deny a motion for new trial on condition that within 10 days the non-moving party consents in writing to the entry of judgment of an amount found by the judge to be the lowest or highest amount respectively which the evidence will support."
GCR 1963, 527.1 authorizes the grant of a new trial "to all or any of the parties and on all or part of the issues".
In the instant case, the jury awarded plaintiff Dooms $300,000, and plaintiff Sanders $50,000. Counsel for Sanders moved for additur or new trial. The trial court ordered defendant Stewart Bolling to stipulate to an additur of $150,000, so that the total verdict in favor of Sanders would be $200,000, or, in the alternative, to submit to a new trial on damages only. Stewart Bolling refused to stipulate to the additur and was granted leave to appeal on the propriety of the trial court action.
Defendant suggests that additur is not allowed in Michigan since it constitutes an improper invasion of the jury's province. Goldsmith v Detroit, Jackson Chicago R Co, 165 Mich. 177; 130 N.W. 647 (1911), Lorf v City of Detroit, 145 Mich. 265; 108 N.W. 661 (1906). However, these cases were handed down long before the adoption of GCR 1963, 527.6. Several recent decisions recognize the use of additur or remittitur to cure an inadequate or excessive verdict. Pippen v Denison Div of Abex Corp, 66 Mich. App. 664; 239 N.W.2d 704 (1976), Barger v Galazen, 61 Mich. App. 182; 232 N.W.2d 354 (1975), Soave Construction Co v Lind Asphalt Paving Co, 56 Mich. App. 202, 205; 223 N.W.2d 732 (1974), Dougherty v Rezolin, Inc, 48 Mich. App. 636; 210 N.W.2d 899 (1973), Nicholaides v Demetri, 38 Mich. App. 102; 195 N.W.2d 793 (1972). Moreover, the issue in this case is not whether additur is permissible. The trial court ordered a new trial on the question of damages unless the defendant agreed to the additur. Since defendant refused to stipulate to the additur, the question on appeal concerns the trial court's action in granting a new trial on the grounds that the $50,000 damage award to plaintiff Sanders was clearly inadequate.
Although the question of damages is one of fact for the jury, as noted earlier, under the court rules, a party may be granted a new trial on the basis that damages awarded were inadequate or excessive. The grant or denial of a new trial is within the discretion of the trial court. More fundamentally, appellate courts will reverse a grant or denial of a new trial grounded upon inadequate damages only where the trial court has "palpably" abused its discretion. Brown v Arnold, 303 Mich. 616, 627; 6 N.W.2d 914 (1942). Where, as here, the reason given for granting a new trial — clearly inadequate damages — is legally recognized, the question becomes whether by any reasonable interpretation of the record there is support for the decision. Benmark v Steffen, 9 Mich. App. 416, 422; 157 N.W.2d 468 (1968). See also Williams Panel Brick Mfg Co v Hudsin, 32 Mich. App. 175; 188 N.W.2d 235 (1971).
Arnsteen v United States Equipment Co, 390 Mich. 776 (1973).
The instant trial court listed the following as determinative in granting its order:
"The case before the Court presents a truly unique situation in that it involves two cases consolidated for trial involving two men with serious and remarkably similar injuries. Notwithstanding the obvious similarities, there was a tremendous discrepancy in the jury's verdict, i.e., Mack Dooms received $300,000.00 and Willie Sanders $50,000.00. In view thereof it appears to be incumbent upon this Court to examine into whether or not there existed sufficient differences in damages to justify this tremendous variation, and also if there were errors in the trial or circumstances which existed which unfairly prejudiced Willie Sanders.
"Upon a review of the record in a comparison of the damages suffered by each plaintiff the following seems significant:
"Each man suffered a crushing injury to one hand.
"Each man is right-handed, but Mack Dooms suffered injury to his left hand and Willie Sanders to his right.
"Each man's injury resulted in partial amputation of the effected hand.
"According to medical testimony each man has lost effective use of the hand involved.
"Mack Dooms required more surgical procedures following the injury.
"Each man has suffered a loss of earning capacity and loss of earnings.
"Mack Dooms was able to return to his former employer, although at a lesser pay.
"Willie Sanders was not able to return permanently to his former employer and was without employment for a much longer period of time than Mack Dooms. The employment which he finally obtained was at a substantially reduced wage.
"In summary of the above, it becomes clear to this Court that there existed nothing in the record of these cases to justify the extremely large difference in the two verdicts."
The Court agrees with defendant Stewart Bolling that the record shows plaintiff Dooms' injury to be relatively more severe than Sanders' which resulted in a greater degree of suffering and called for more medical attention. Moreover, the lower court tended to over-emphasize the fact that Sanders was off work for a longer period. The record seems to indicate that the period of unemployment was due in part to the disposition as well as the capacity of Sanders. Conversely, there were, as the court below points out, striking similarities between the two injuries. Further, it was Sanders who lost effective use of the hand he used the most by nature. Yet, the damages awarded amounted to approximately 16% of what Dooms was awarded. We cannot say that the trial court abused its discretion in finding that a significantly larger sum was supported by the record, and that plaintiff was entitled to a new trial on the grounds that the damage award was clearly inadequate.
Defendant questions the authority of the trial court to grant plaintiff Sanders a new trial limited to the issue of damages. It is true that, as a rule of thumb, appellate courts do not favor the practice of granting partial new trials in personal injury cases, despite authorization from GCR 1963, 527.1, owing to the fact that liability and damage issues are commonly interwoven. Kistler v Wagoner, 315 Mich. 162; 23 N.W.2d 387 (1946), Bias v Ausbury, 369 Mich. 378, 383; 120 N.W.2d 233 (1963). The only exception to this notion that the Supreme Court has thus far recognized is where "liability is clear". Trapp v King, 374 Mich. 608; 132 N.W.2d 640 (1965). See also Doutre v Niec, 2 Mich. App. 88, 90; 138 N.W.2d 501 (1965).
An additional exception seems to have been posited in Mulcahy v Argo Steel Construction Co, 4 Mich. App. 116, 130; 144 N.W.2d 614 (1966). A departure from the notion against granting partial new trials is justified where the circumstances of the case establish that justice will be fully and better served. In this light, due consideration must be given to the decision of the trial court who presided over the case. The focal point of liability in the instant case depended upon whether the rubber milling machine was equipped with adequate safety devices. There was substantial proof presented to show it was not. It appears evident from the evidence that were the case retried on all the issues, the result would not be different on the question of liability. Under the circumstances of this case, we believe that the lower court did not err in granting a new trial limited to damages, and that the interest of justice would not be served by incurring the added time and expense necessary for a full-blown retrial.
Did the trial court commit reversible error by refusing the jury's request to view the rubber milling machine?
During its deliberations the jury made a written request to see the machine. The request was denied by the trial judge and on appeal appellant contends the denial constitutes reversible error. GCR 1963, 513 states:
"Upon application of either party or upon its own initiative, the court may order an officer to conduct the jury as a whole to view any property or place where a material fact occurred." (Emphasis supplied.)
Under the rule the determination of the trial court is made discretionary. Likewise, under well established case law a trial judge may, in his discretion, refuse to permit the jury to view the premises where the injured party claims the accident occurred. Leonard v Armstrong, 73 Mich. 577, 581; 41 N.W. 695 (1889), Mulliken v City of Corunna, 110 Mich. 212, 214; 68 N.W. 141 (1896). We find no abuse of discretion. The record is replete with photographs, blueprints and drawings of the machine. Further, the record shows that material changes had been made in the machine subsequent to the accident. The safety trip wire had been lowered some six inches. Given these circumstances the trial court may well have concluded that permitting a view would in itself have caused confusion and have been grounds for error.
We have reviewed the remaining assignments of error presented by the parties on appeal, and concluded that they either have not been properly preserved for appellate review, or are so insubstantial as to need no formal discussion.
The verdict of no cause of action against defendant Michigan Mutual Liability Company in each of the consolidated cases is affirmed. Costs to Michigan Mutual Liability Company against plaintiff Dooms. The verdict against defendant Stewart Bolling and Company in favor of plaintiff Dooms is affirmed with costs to plaintiff. A new trial on the question of damages only is ordered in Sanders v Stewart Bolling and Company, with costs to plaintiff Sanders.
Affirmed, costs as indicated above.
J.H. GILLIS, P.J., concurred.
I concur in Judge ALLEN'S opinion because I feel that under all of the circumstances of this fiercely contested trial all parties were well represented and had what I perceive to be a fair trial. I do not agree with the statement that "the record is devoid of evidence tending to show that it was the plaintiffs' conduct rather than the defect which caused the harm". There was evidence from which the jury could have found plaintiffs guilty of contributory negligence. However the jury obviously did not. An appellate court cannot give more weight to that evidence than did the jury. If the jury had, however, found no cause of action, I would likewise vote not to disturb that verdict.
We are taking a critical step here in affirming the Sanders remand for re-trial on the issue of damages only. I feel compelled to mention this because I think we should make it clear to the bench and bar that we are opting for a rule which would vest discretion in the trial court where liability has been determined favorably to plaintiff and adverse to defendant to order a new trial on the basis of damages only where the damage award was either clearly inadequate or clearly excessive. We do not go that far in this holding because we are sustaining a jury verdict as to liability and damages in favor of Dooms who had by far the greater familiarity with this machine and who would be more likely to have been no caused than Sanders who had been placed on this machine only the day of the accident, and whose injuries resulted from an impulsive attempt to save his fellow man from catastrophe.
Had this same jury not assessed these awards I would vote differently. In my opinion $50,000 for the loss of use of a hand is not per se inadequate. It is the comparison which offends. The jury must have been influenced by one or more of the prejudicial factors mentioned by the trial judge in his opinion filed January 24, 1974. His on-the-scene perspective is far the better one in the overall analysis of this issue. I cannot say there was a clear abuse of discretion.