This appeal involves an action under the Alabama Extended Manufacturer's Liability Doctrine and was tried before a jury in the Circuit Court for Calhoun County. Melvin Leo Knighton (plaintiff) received a verdict and judgment in the amount of $225,000.00 for personal injuries sustained on a shuttle welder. Banner Welders, Inc. (defendant), moved unsuccessfully for postjudgment relief under Rule 50, Alabama Rules of Civil Procedure, and then appealed.
Five issues are presented for our consideration by this appeal. They are:
We answer the questions posed by these issues in the negative, and we affirm the judgment of the trial court. Each issue will be considered separately.
Plaintiff's original complaint alleged negligence in the failure to provide guards on the shuttle welder to prevent personal injury, and negligence in failing to provide warnings of the danger inherent in it. Subsequently, the complaint was amended to include a count for breach of implied warranty and a count under the Alabama Extended Manufacturer's Liability Doctrine. Defendant pleaded the general issue; contributory negligence; misuse of the product; assumption of the risk of injury; and
Plaintiff was a shuttle welder operator employed at Universal Products' Bostrom plant in Piedmont, Alabama. On February 11,1977, he was injured while operating the shuttle welder. The shuttle welder has a moving carriage powered by air pressure. It takes pieces of metal, in this case Jeep seat frames, to different stations for welding. The carriage moves away from the operator, taking the metal pieces to the welding stations. They are then returned to the operator, who removes them. The machine was manufactured by defendant specifically for plaintiff's employer. Defendant's expert witness, Tom Rosenberg, a mechanical engineer and vice-president of manufacturing for Banner Welders, Inc., testified that the shuttle welder was custom built and was unique. Rosenberg acknowledged it was known that at times the welder would jam due to various causes.
Such a jam occurred on the date of the accident. At the time, plaintiff had operated the shuttle welder for three or four months. Plaintiff's testimony revealed that when the jam occurred, plaintiff turned off the master electrical switch. He tried unsuccessfully to dislodge the stuck frame with a three-foot metal pipe which he had previously used successfully for the same purpose. While plaintiff was attempting to unjam the shuttle welder, his supervisor, Bob Adams, came by. Adams instructed plaintiff to use a screwdriver to loosen the frame. He borrowed one from a fellow employee and returned to the shuttle welder. Plaintiff testified that in attempting to dislodge the frame, he kept one foot on the floor, placed his knee over the carriage, and reached up. At that point, apparently, the carriage caught his arm, the frame broke loose, and he was pulled into the shuttle welder. As a result, he broke his hip and wrist, and had to undergo a total hip replacement.
Plaintiff testified that when the accident occurred, the carriage moved toward him, unlike previous occasions when it would not move, or would move away from him. Plaintiff's supervisor testified that even with the air turned off, the machine still could move because of compressed air in the lines. Adams acknowledged that to bleed air out of the lines, a small valve on the side of the machine had to be used. It was disputed at trial as to whether plaintiff was correctly instructed regarding what to do in the event the shuttle welder jammed.
Arnold Martin, a "certified safety professional," testified as an expert witness for plaintiff. Martin explained that at the time of the shuttle welder's manufacture, the state of the art required that in the interest of safety it should have been made with guards on both sides and in the rear to prevent someone from entering it. He also stated that a warning should have been placed on the shuttle welder. He explained as follows:
Subsequent to plaintiff's accident, protective barrier guards were installed on the shuttle welder.
I. The Color Photographs
Defendant contends that the trial court erred to reversal by allowing certain color photographs, offered by plaintiff, to be admitted into evidence. The basis of defendant's contention is that the photographs showed post-accident modifications to the shuttle welder, which were apparently made for the purpose of making the machine safer. Generally, evidence of subsequent repairs is not admissible to establish negligence, although it may be admissible to show identity of ownership, to show control of the locus, to contradict or
Defendant theorizes that it preserved error as to all photographs by its motion in limine, and that an objection to the photographs, at the time they were offered into evidence, was unnecessary. We disagree. At the beginning of trial, defendant orally moved for a motion in limine:
After that, plaintiff and defendant argued their positions to the trial judge, who viewed the disputed photographs and rendered a decision on their admissibility. The judge ruled that some photographs were admissible, that others were not admissible, and that some would be admissible only after objectionable portions were cut off:
In Acklin v. Bramm, 374 So.2d 1348 (Ala. 1979), this court effectively overruled Bradford v. Birmingham Electric Co., 227 Ala. 285, 149 So. 729 (1933), and held that use of a motion in limine is permissible in this jurisdiction. Defendant contends that because its motion in limine was granted, it was not required to object again when the photographs were offered into evidence. This court has not previously been called upon to answer this question.
The Supreme Court of Iowa has noted the proper use of a motion in limine:
More broadly, the Supreme Court of Washington has discussed the considerations applicable to the granting or denying of a motion in limine:
Encompassed in the above-quoted authorities is the concept that, as specifically as possible, a motion in limine must apprise the trial court of its object. This is especially true in the case of exhibits which the non-movant may seek to offer into evidence. A broad-based motion which leaves the trial court to speculate as to the motion's object may be insufficient to preserve subsequent error which is not called to the trial court's attention. This is the case here. It is clear from the record that the defendant initially did not object to plaintiff's exhibits one, two, three, and six. Of those, two and three were later entered into evidence without objection. Although, in ruling on defendant's motion in limine, the trial court found plaintiff's exhibit four to be admissible, it was later offered into evidence with defendant's consent. Therefore, defendant cannot allege error as to that photograph. Plaintiff's exhibits five and seven were never offered into evidence. Plaintiff's exhibit eight was offered without objection, which defendant concedes. As to these photographs, defendant failed to preserve error by either failing to object to their introduction or by implicitly waiving objection, as in the case of plaintiff's exhibit four.
Plaintiff's exhibits originally were color photographs measuring eight by ten inches. Plaintiff's exhibits one, six, nine, and ten, were trimmed along the borders to eliminate the objectionable modifications.
We find the case of Rogall v. Kischer, 1 Ill.App.3d 227, 273 N.E.2d 681 (1971), authority supporting the trial court's action in trimming the photographs. There, photographs showing damage to plaintiff's automobile were allowed into evidence over defendant's objection. The photographs had "car damage" written on them with arrows indicating the damaged parts of the vehicle. The trial court judge allowed the photographs to be admitted after they were trimmed to remove the writing contained on them. The Illinois Appellate Court sanctioned the trial court's action. Similarly, it upheld the showing of a motion picture to the jury, after excluding certain inflammatory portions. Although Rogall v. Kischer did not involve the issue of trimming a photograph to remove evidence of post-accident modifications or repairs, the same result still applies. Where a photograph depicts objectionable material which is capable of being severed, the remainder of the photograph may be admitted into evidence in the trial court's discretion. The vesting of that discretion in the trial court in the admission of photographs is well established.
Reviewing photographs trimmed by the trial court, we are unable to conclude that their admission was an abuse of discretion, in light of the above-cited principles. Instead, we find that the trial court wisely exercised its discretion by trimming the photographs and admitting them into evidence. By so doing, the jury was afforded additional views of the shuttle welder to aid them in their resolution of the issues presented at trial.
II. Plaintiff's Alleged Misuse of the Shuttle Welder
Next, defendant argues that plaintiff did not make out a case under the Alabama Extended Manufacturer's Liability Doctrine and, therefore, it was entitled to a directed verdict. It theorizes that plaintiff misused the shuttle welder by disregarding its safety devices and attempting to dislodge the Jeep seat frame which had jammed. In McCaleb v. Mackey Paint Manufacturing Co., 343 So.2d 511 at 514 (Ala.1977), citing and quoting Atkins v. American Motors Corp., 335 So.2d 134 (Ala. 1976), this court stated: "The user's misuse of the product constitutes a valid defense under the `extended manufacturer's liability doctrine.'" We further observe that "[o]rdinarily, the conduct of the plaintiff, in his use of an alleged defective product, is a factual issue for the jury." Beloit Corporation v. Harrell, 339 So.2d 992 at 997 (Ala. 1976).
The principles applicable to the granting of a directed verdict are well established.
Caterpillar Tractor Company v. Ford, 406 So.2d 854 at 856 (Ala.1981).
Assuming, without deciding, that the defense of misuse of the product properly applies to the instant fact situation, we conclude that the evidence was conflicting as to plaintiff's "use" of the shuttle welder. A jury question, therefore, was created. Viewing the evidence in a light most favorable to plaintiff, the jury could conclude that he did not misuse the shuttle welder. Defendant's argument on this issue cannot be a basis for reversal.
III. Assumption of the Risk and Contributory Negligence
Defendant also argues that the evidence showed plaintiff's actions in unjamming the shuttle welder constituted assumption of the risk, or alternatively, contributory negligence. It insists that the trial court erred by not granting its motion for a new trial. A trial court's granting or denying of a motion for a new trial is largely discretionary. Chavers v. National
Chavers, at 10.
In the instant case there was conflicting evidence bearing on the defenses raised by defendant. The jury could conclude that plaintiff neither assumed the risk, nor was contributorily negligent in his efforts to unjam the shuttle welder. "Verdicts are presumed to be correct and that presumption is strengthened when a new trial is denied by the court." Cooper v. Peturis, 384 So.2d 1087 at 1089 (Ala.1980); Gavin v. Hinrichs, 375 So.2d 1063 (Ala. 1979); Elba Wood Products, Inc. v. Brackin, 356 So.2d 119 (Ala.1978). We will not disturb the trial court's ruling on a motion for a new trial unless it is "plainly and palpably erroneous." ConAGRA, Inc. v. Masterson, supra; Shepherd v. Southern Railway Company, 288 Ala. 50, 256 So.2d 883 (1970). We cannot reach that conclusion here, and, therefore, we cannot disturb the trial court's ruling and judgment.
IV. Plaintiff's Comments During Closing Arguments
Defendant argues that during closing arguments, on several separate occasions, plaintiff made highly prejudicial remarks, to which objections were made and sustained. Plaintiff's argument, made by James L. Klinefelter, Esq., and by John R. Phillips, Esq., contained the following remarks.
Defendant contends that the remarks were ineradicable and improperly influenced the jury's verdict. We observe that although defendant objected to plaintiff's remarks, it did not request curative instructions or move for a mistrial. Moore v. State, 364 So.2d 411 at 414 (Ala.Cr.App. 1978), recited the familiar rule concerning preservation of error in improper argument of counsel:
The question which next arises is whether defendant's alleged error came within the exception to the general rule. We find that it does not. None of the remarks were so invidious that they could not have been cured by requested instructions from the trial court. Nor do we find that the four instances cited from the record, when considered together, cumulatively created ineradicable prejudice. Instead, we find that the error alleged by defendant falls within the situation considered by this court in Prescott v. Martin, 331 So.2d 240 (Ala.1976):
Prescott v. Martin, at 247. Accordingly, we find defendant's allegation of reversible error to be without merit.
V. The Allegation of Substantial Change
Lastly, defendant argues that it was entitled to a directed verdict because the evidence showed the shuttle welder had been substantially changed after it left defendant's hands. Defendant points to the fact that the "ground blocks" on the shuttle welder were changed. On cross-examination Bob Adams, a witness for the defense and plaintiff's supervisor, gave the following testimony:
Defendant correctly calls to our attention the fact that to prevail under the Alabama Extended Manufacturer's Liability Doctrine, a plaintiff must establish that the product "was expected to, and did, reach the user without substantial change in the condition in which it was sold." Atkins v. American Motors Corp., 335 So.2d 134 at 141 (Ala.1976); Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976). Defendant theorizes that it is logical to infer
We find defendant's argument to be without merit. Plaintiff did establish defendant's liability under the Alabama Extended Manufacturer's Liability Doctrine by showing that the shuttle welder was substantially unchanged at the time plaintiff was injured. Arnold Martin, plaintiff's expert witness, testified on direct examination that the shuttle welder was substantially unchanged at the date of plaintiff's injury. Proximate cause is an element of a products liability action. A plaintiff must prove that his injury resulted from the defective condition of the product. Casrell v. Altec Industries, Inc., at 133. One commentator has observed:
Annot., 41 A.L.R.3d 1252 at 1253 (1972). In the instant case, we find it to be a reasonable inference that no substantial change occurred to the shuttle welder after its manufacture so as to negate a showing of proximate cause by plaintiff. It is unclear from the record what ground blocks are. Nevertheless, the reasonable inference of the testimony of plaintiff's supervisor is that no substantial change was made to the machine. Plaintiff's expert witness specifically denied that the shuttle welder had changed substantially. Defendant cites no other portion of the record to support its theory. Therefore, we find no error in the trial court's denial of defendant's request for a directed verdict.
For all of the foregoing reasons, we find no reversible error, and we affirm the judgment of the trial court.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.