FAIRCHILD, Chief Judge.
This is a diversity suit brought by Joseph S. DeSantis, a 12-year old boy, and his father, John T. DeSantis, against Parker Feeders, Inc. for injuries sustained by the boy in an accident occurring on May 6, 1969.
The cattle feeder involved in the accident was constructed entirely from parts manufactured by defendant. Though defendant sold these parts separately, one from the other, and though Mr. DeSantis was free to have substituted the parts of another manufacturer for those of defendant, he was not free to omit any part purchased from the cattle feeder. Each was absolutely necessary to the assembly of a working feeder system.
The only part manufactured by defendant that was not so absolutely necessary to a working cattle feeder system was a cover for the trough and auger parts that could be obtained by special order. The cattle feeder in which Joseph DeSantis was injured did not have a trough/auger cover. There is no evidence that defendant made any effort to insure that Mr. DeSantis or any purchaser of its cattle feeder parts, especially of its trough and augers, also purchased such safety covers. In fact, pictures in defendant's promotional advertising never depicted an operating cattle feeder equipped with a cover. As a result, the district court held Parker Feeders strictly liable for the boy's injuries. Defendant appeals from the judgment of the district court, charging as error the denial of its motions for a directed verdict, judgment notwithstanding the verdict and a new trial.
MOTIONS FOR DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT
Defendant makes two arguments for reversing the trial court's denial of its motions for a directed verdict and judgment notwithstanding the verdict: (1) that, as a matter of law, the products it manufactured were neither defective nor unreasonably dangerous, and (2) that it is not liable for injuries sustained when its products are not used for their intended purpose.
A directed verdict is appropriate "`only when the evidence gives rise to no dispute as to the material issues or only when the evidence is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion.'" Anderson v. Joint School Dist., 24 Wis.2d 580, 583, 129 N.W.2d 545, 547 (1964), citing Smith v. Pabst, 233 Wis. 489, 288 N.W. 780 (1940) and Rusch v. Sentinel-News Co., 212 Wis. 530, 533, 250 N.W. 405 (1933). See also Tombal v. Farmers Insurance Exchange, 62 Wis.2d 64, 68, 214 N.W.2d 291 (1974). Thus, in determining whether or not the trial court erred in failing to direct a verdict or in denying judgment notwithstanding the verdict, this court must consider the evidence in the light most favorable to the party against whom the verdict was sought to be directed. Lambie v. Tibbits, 267 F.2d 902, 903 (7th Cir. 1959); Tombal v. Farmers Insurance
With respect to the issue of defect and dangerousness, defendant's argument on appeal focuses on its assertion that it was but one manufacturer of component parts from which cattle feeders could be assembled. Which of these parts did and did not find their way into the DeSantis' feeder, it argues, was a matter completely out of its hands and completely up to Mr. DeSantis and Mr. Schrank, his supplier, who together designed and assembled the feeder in question. Accordingly, ultimate responsibility for any defect or dangerousness in the feeder should rest with Mr. DeSantis and Mr. Schrank.
We are unpersuaded by this argument for two reasons. First, viewing the evidence in the light most favorable to the plaintiff, it was not unreasonable for the jury to conclude that Parker Feeders was in fact the manufacturer, not simply of the parts that comprised the DeSantis' feeder, but of the feeder itself. As already observed, every part that Mr. DeSantis purchased to construct his feeder was dependent on every other part to accomplish any useful purpose, and each of these parts was manufactured by Parker Feeders. Thus, if it was deemed a defect in design or unreasonably dangerous for the DeSantis' feeder to operate without a cover, we do not consider it unreasonable for the jury to have decided that Parker Feeders, as manufacturer of all its parts—of what in essence then was a "Parker King-O-Matic Cattle Feeder," a product always depicted uncovered in defendant's promotional literature—must be held strictly liable for injuries resulting from such defect or danger.
Second, Parker Feeders' argument is unpersuasive because, even if the jury believed it to be simply the manufacturer of component parts, the rule in Wisconsin is that,
The evidence supports the conclusion that no material change was made in the trough, auger, or any other Parker Feeders' part in assembling the DeSantis' feeder, that each was "merely incorporated into" the whole feed system. As such, it would have been reasonable for jury to conclude that it was a defect in the design of, or a danger in, the auger, trough, or some other part, for Parker Feeders to sell such part without a cover attached or without strong clear warnings that such part only be incorporated into feeder systems provided with covers.
With respect to the issue of intended use, Parker Feeders argues that it should not be expected to have foreseen that young children would use a cattle feeder to play a game involving hiding squirt guns. We cannot agree. We do not consider it unreasonable that the jury, presented with evidence of defendant's promotional material advertising,—"Even a child can do your feeding"—found exposure of Joseph DeSantis to the cattle feeder something defendant should have foreseen. Nor are we persuaded that the feeder was being misused by the boy at the time of the accident. The plaintiff was injured because, while climbing over the feeder's trough and auger, he misjudged the distance, failed to step widely enough, and found himself caught in the mechanism's whirling blades. It was irrelevant to this accident that the boy and his brothers had turned on the
MOTION FOR A NEW TRIAL
Defendant charges eight errors committed below warrant this court's grant of a new trial: (1) that the court's instruction regarding standard of care in reference to strict liability was inappropriate; (2) that the court's use of the term "Parker King-O-Matic Feeder" in the instruction on strict liability was unduly prejudicial; (3) that the court's use of the singular word "product" in Question 1 of the special verdict was similarly prejudicial; (4) that the trial court's instruction on duty to warn was inappropriate given the open and obvious nature of the danger; (5) that the trial court erred in not giving defendant's suggested instruction on the duty of care owed by the installer of the feeder; (6) that the court's instruction on the possibility of plaintiff's suffering posttraumatic personality disorder was unnecessarily duplicitous; (7) that the testimony of plaintiff's witness, Mr. Wrage, subjected defendant to undue surprise and prejudice; (8) that the damages awarded to the plaintiff were excessive; and (9) that the answers to Questions 1-9 of the special verdict were not supported by the weight of the evidence.
The trial court has already considered most of these charges of error, either in the course of trial objections, or as motions after trial. We agree with its decision that all are insufficiently supported to warrant granting defendant a new trial.
With respect to defendant's challenge to the instruction on strict liability, the principal objection seems to be to inclusion of the phrase "even though he exercised all possible care," given that the alleged defect related to design.
And in Arbet v. Gussarson, 66 Wis.2d 551, 225 N.W.2d 431 (1975), Wisconsin's Supreme Court ruled that "the fact that the defect relates to design rather than negligent manufacture makes no difference" in applying the Restatement rule. Id. at 556, 225 N.W.2d 435. See also Schuh v. Fox River Tractor Co., 63 Wis.2d 728, 218 N.W.2d 279 (1974). The decisions in Dippel, Arbet and Schuh make clear then that the instruction given by the trial court was a completely accurate statement of Wisconsin law on strict liability and that defendant's argument for a special instruction in the case
Defendant cites as further error the trial court's use of the term "Parker King-O-Matic Feeder" in the fifth paragraph of the instruction on strict liability,
For the same reason, we find no error in the trial court's use of the singular term "product" as opposed to the plural "products" in Question 1 of the special verdict.
Defendant is, of course, correct when, in making its next argument,
We do not accept Parker Feeder's argument that it is absolved from any liability in regard to this duty by the fact that young Joseph DeSantis would not have been likely to read or understand any warning. What is important to our decision is that the boy's father would have understood the warning and have been on notice to take steps which, in this case, would have avoided the injuries suffered by his son. If Parker Feeders was indeed only the manufacturer of a component part, and if that part could be a serious hazard if it were incorporated into a machine without certain safety devices, it owed all who might come in contact with the part the duty to warn those who would assemble any machine in which its part was included that the completed machine should not be installed without the inclusion of such necessary devices.
Defendant next argues that the trial court erred in not giving its proposed instruction on the duty of care owed by the installer.
Nor are we persuaded to grant a new trial as to damages based on defendant's challenge to the court's instruction on plaintiff's possible posttraumatic personality disorder.
Defendant cites as further evidence of reversible error as to damages the trial court's refusal to strike the testimony of John Wrage, a psychologist and employment counselor, as to Joseph DeSantis' future earning capacity. Defendant claims it was prejudiced insofar as it was not informed prior to trial that Mr. Wrage was a psychologist nor furnished with the report—four sentences in length—he had prepared for the plaintiff.
We find any surprise or prejudice suffered by the defendant as a result of the testimony given by Mr. Wrage insufficient to warrant a new trial. The defendant was aware Mr. Wrage would be called to testify, and though it was not given a copy of the witness' report until he took the stand, we find its length sufficiently short and its contents sufficiently comprehensible to rule that defendant was not denied the ability to conduct meaningful cross-examination of Mr. Wrage. Defendant may well have been surprised that Mr. Wrage's background was more impressive than it had thought, but we cannot rule that a defendant in a civil case is unduly prejudiced because an opposing party's witness is, for some reason or other, more credible than defendant had anticipated.
Defendant also seeks a new trial by challenging the damages awarded as excessive. While the sum awarded, $840,000 is certainly considerable, it is not our task to consider whether we personally would have made such an award. Indeed, it is not even
In this case, parts of the award were stipulated and therefore need not be reviewed in considering this challenge. As to the disputed amounts, the jury awarded $40,000 for the expenses Joseph DeSantis could expect to incur in his lifetime as a result of his accident. In light of plaintiff's life expectancy, and the testimony by the prosthetist, Carl Caspers, regarding the frequency with which the plaintiff will have to purchase artificial legs and socks to cover his stump, and the cost of such items, we cannot say that the award of $40,000 was unsupported by credible evidence.
$300,000 was awarded the plaintiff for personal injuries, including pain and suffering for the six years from the date of the injury to the trial. Certainly, for the plaintiff, a child of six, to be the victim of an accident in which his lower legs and thighs were repeatedly slashed by the whirling auger blades in which he was trapped, had to be a terrifying experience. Within the year, he was then subject to four major surgical procedures which, when completed, left him without one leg and some of the toes on the leg remaining. In the next six years this little boy had to accept the fact that physically he was always going to be different from other children, that there would always be things he could not do, or would be too embarrassed to do. That Joseph DeSantis has done well in school, that he has sought physical normalcy in his life wherever possible, be it in having a paper route of sorts, or in actively participating in games such as baseball and basketball, simply cannot be treated as anything but a marvelous accomplishment on his part. What it cost him both mentally and physically to suffer through this accident, the attending operations, and ultimately, to achieve these goals, cannot be fixed with accuracy by any of us. But it in no way seems a denial of justice for the trial court to have upheld the jury award of $300,000 for the suffering of these six years.
$500,000 was awarded for future damages. Defendant, in arguing, "that Joseph DeSantis has adapted very well to his injuries," thereby implies that future suffering will be minimal. But the fact remains, the boy has lost his leg, and there will not be a day in his life that he will not have to cope with that. The evidence suggests his physical activities will always be curtailed, and that those activities he does engage in will require increasing expenditures of his energy as the years go on. It is possible that any attempts at sexual involvement with women will be physically and emotionally draining for him. His job options are somewhat limited. He stands a greater risk of suffering arthritis than the average individual. As the trial court observed,
Because we concur in this assessment of the plaintiff's future, we cannot grant defendant's request for a new trial on damages. We agree that the award is near the upper limit, but under the circumstances noted and, in light of the trial judge's approval, we do not deem it so large as to be excessive.
Finally, defendant argues that a new trial is in order because the evidence does not support the jury's findings with respect to Questions 1-9 of the special verdict. Essentially, these questions deal with the various degrees of culpability among defendant, the boy's parents, and distributor Schrank regarding the accident. As already noted regarding defendant's allegation of error as to the court's instruction on installers' duty of care, any error in apportioning liability
We have reviewed the record in light of this standard and must concur with the trial court that the evidence was sufficient to support the jury's findings with respect to each of these questions. Nothing in defendant's brief persuades us to the contrary.
The judgment appealed from is AFFIRMED.