ROBERT W. HANSEN, J.
This appeal asks two questions: Does this record justify the jury verdict finding the appellant negligent at all? Does it support a jury verdict finding the respondent entirely free from negligence? This court answers the first question in the affirmative, the second in the negative.
On the issue of the negligence of the cement-furnishing company, this case was tried and submitted to the jury under the doctrine of strict liability. The strict liability rule requires that the plaintiff must prove that the product was in defective condition when it left the possession
The first flaw is that, before expert testimony can be held to be a prerequisite to a trier of fact making a finding of fact as to an issue of fact, it must be found that the matter involved is "... not within the realm of the ordinary experience of mankind ...."
In part, this holding is based upon a second flaw we find in the appellant's position on this point. Appellant appears to view as an expert only a person whose education or near-professional status qualifies him to describe or evaluate a situation. In the area of medical testimony, it may well be that the expert witness, qualified to express an opinion as to permanency of injuries, can only be a physician or surgeon, educated and licensed as a member of the medical profession. But we deal with cement, not medical diagnosis or prognosis, here, and special experience can qualify a person as an expert in the field as well as academic studies or baccalaureate
On the issue of establishment of a dangerous defect, appellant asserts it was error for the trial court to admit evidence that seven other employees had been burned by the same concrete mix on the same day on the same job. Reliance is upon 1 Jones, Evidence (5th ed.), p. 324, sec. 185, where it is stated:
"Since evidence of other similar conditions or occurrences under similar circumstances involves proof of collateral matters, a good deal of discretion is necessarily vested in the trial judge on the question of whether the evidence should be admitted. The usual considerations of undue distraction or prejudice, surprise, or undue consumption of time are inherent..."
A full quote from Jones on this point should include the paragraph, on page 323, stating that:
"Evidence of other accidents or similar occurrences at the same place or under similar conditions and circumstances may be admissible to show the probability of the defect in question, that the injury was caused by the defect and that the person responsible knew or should have known of the existence of the defect."
While this court has held testimony as to other persons falling on a dance floor inadmissible as raising collateral matters and not proving the dangerous character of a dance floor,
On the same issue of appellant's liability, challenge is made to the trial court's refusing to instruct the jury that "[t]he seller is not an insurer and the law does not require him to guarantee that his product cannot be used in such a way as to cause injury or damage. . . ." Instead the trial court instructed the jury that it was not to find the appellant negligent unless:
"2. The product which he sells is in a defective condition, unreasonably dangerous to the user or consumer or to his property.
"By defective condition is meant a condition not expected by the purchaser, which then renders the product unreasonably dangerous for its intended or foreseeable use.
"To be unreasonably dangerous, the product must be dangerous to an extent beyond that which would be expected by the ordinary user with the ordinary knowledge common to the community as to its characteristics."
The instruction as given clearly required the jurors to find first the fact of a defect before finding the appellant liable. While we do not quarrel with the proposition that a seller is not an insurer and the law does not require him to guarantee that his product cannot be used in such a way as to cause injury or damage, the requested instruction went beyond this to ask the trial court to instruct that "cement cannot be made without the presence of lime as a principal ingredient," in effect requesting a trial court holding that ordinary concrete is an unavoidably unsafe product. The trouble with that is that appellant, as well as respondent, introduced evidence that ordinary concrete was not unavoidably dangerous, at least not to the degree of causing second- or third-degree burns. On the record made, instructing the jury that it must find a defect rendering the product unreasonably dangerous was proper.
The second major issue raised on this appeal relates to apportionment of negligence. The jury found the appellant 100 percent negligent and the respondent entirely free from negligence. In a memorandum decision, the trial court approved the verdict as rendered. The appellant terms the 100 percent negligence attributed to it as "shockingly and grossly disproportionate," and urges the court to find that the plaintiff was guilty, to some degree, as a matter of law, of negligence on his part as to injuries and damages sustained.
In view of the sweeping nature of this rule or approach to review, a minority of this court, including the writer, would let the verdict stand, finding it a reasonable view of the evidence, based on the testimony of the job foreman, the fact that seven other workers were burned by the same concrete mix, because the respondent was not aware of any danger and because no negligence on his part contributed to the injuries sustained.
Appellant contends that, because the respondent knew that even ordinary concrete could inflict burns if exposure to it was prolonged and because he knew another worker had left the job because of being burned, the only reasonable view of the record compels the conclusion that he was not entirely free from negligence. Certain facts that bear upon respondent being negligent to some degree as a matter of law are not in dispute. He worked in the puddling process for six continuous hours, a half-hour lunch period being the only interruption. He wore leather ankle-top construction shoes, over which he wore ten-inch-high galoshes. He wore Levi-type trousers, tucked into the rubber galoshes but left outside the eight-inch-high work shoes. On the day of the injury, the depth of the concrete was unusually great. Respondent
Given these facts, all of which are not in dispute, the majority finds inescapable the conclusion that the record establishes that the deviation in depth from the usual working condition, combined with the knowledge that concrete, even ordinary concrete, can inflict burns and the knowledge that a fellow worker had left the job complaining of burns to skin and legs, constitutes some measure of contributing negligence. Thus viewing the evidence, the majority is required to reverse and remand for a new trial.
By the Court.—Judgment reversed and cause remanded for a new trial.