# Petition — Collins v. Ridge Tool Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1565%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 424 U.S. 949 ## Text Sup. -ne Court, U. & FiLED JAN 12 1976 - saa sie ROR, CLERK | IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1975 BERNARD J. COLLINS and MARIAN COLLINS, Petitioners, VS. THE RIDGE TOOL COMPANY, Respondent. PETITION FOR A WRIT OF CERTIORARI To the United States Court of Appeals for the Seventh Circuit WILLIAM L. McCUSKER : 25 West Main Street, Suite 731 : Madison, Wisconsin 53703 (608) 256-1841 Counsel for Petitioners St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477 = INDEX Page Pn 7 cu rate Sere eaters pies ko cecy use l EE ee ee ee ee ae 2 eas als a his cite ed RKO SAYS On 4:0 2 Constitutional and Statutory Provisions Involved ........ 3 gt PP TICE TCT CC TOTTe Tree 3-5 Reasons for Granting the Writ ................0.0085 6-17 ST Wb bbaaw ec Ube sddeverdaceek Se Sieve eves 17 Appendix: A—Decision of Trial Judge James E. Doyle of Western District of Wisconsin dated January 26, 1973 in Ge EE UC. obi cede cet sceeccteus A-1 B—Decision of 3 judge panel of Circuit Court of Ap- peals in Collins v. Ridge Tool dated August 13, oS id re A-5 C—Order of Seventh Circuit Court of Appeals dated September 22, 1975, recalling prior mandate to per- mit consideration of Petition for Rehearing in DE Sues Cree REC OUR Ee TEES CAR se ueeoes A-17 D—Order of Seventh Circuit Court of Appeals denying Petition for Rehearing in Banc dated October 14, SPUR GE PU PUSS ecw bokrtetebedéeraceast A-18 E—Decision of Seventh Circuit Court of Appeals in McPhee v. Corinth Machinery Co. dated April 30, 1971 on appeal from Judgment in Western Dis- I vac as wa caka nae eeauees A-20 F—Opinion and Order of Trial Judge James Doyle (W.D.Wis.) in McPhee v. Corinth Machinery Co. GUNES Se Be HD hb unos wascsavupinsader A-23 G—Decision of Seventh Circuit Court of Appeals in Sievers v. Keebler Company, dated November 30, 1971, on appeal from a judgment entered in the U.S. District Court for Western District of Wis- SED 66 0k 406 oe 46500.05 446095 chEKCET ROR A-31 H—Decision of Trial Judge Doyle (W.D.Wis.) in Sievers v. Keebler Company dated Nov. 30, 1971........ A-35 I—Decision of Trial Judge James E. Doyle (W.D.Wis.) in Sievers v. Keebler Company, dated March 30, 1972, also involved in that appeal ............. A-40 Cases Cited A. & G. Stevedores v. Ellerman Lines, 369 U.S. 355 (1962) 15 Bishop v. Johnson, 36 Wis.2nd 64, 152 N.W. 887 (1967) 12 Bruno v. Biesecker, 40 Wis.2nd 305, 177 N.W.2nd 388 ED Leet es So oes Shee C ree terre as br eeeeeee ee 10 Colson v. Rule, 15 Wis.2nd 374, 113 N.W.2nd 14 (1962) 12 Davis v. Skille, 12 Wis.2nd 482, 107 NW2nd 458 (1961) 10 Dazenko v. Hunter Machine Co. (7CCA, 1970), 420 F.2nd Sy -.c0 suntan Gt bt whbede ek cca eee Geis ss 10 Dick v. New York Life Ins. Co., 359 U.S. 437 (1958) ..9, 16 Dippel v. Sciano, 37 Wis.2nd 443, 155 N.W.2nd 55 i citcaivds.dctuneadee ech dae eee beeen 12, 13 Etling v. Sander (7th CCA), 447 F.2nd 593 (1971) ...... 11 Howes v. Hansen, 56 Wis.2nd 247, 201 NW2nd 825 SPE ceatitwcnas (6) >a bae Wktahi ed eaahas 13 Johnson v. Sipe, 263 Wis. 191, 56 NW 2nd 852 (1952) .. 10 McConville v. State Farm Mut. Ins., 15 Wis.2nd 374, 113 ee he EE «Gas dca c chee celt'n's abe 7, 11, 12 McPhee v. Corinth Mach. Co. (7th CCA, 1971, not re- ES oer rr yr rrk TELE e tee eee 7,8 Maichle v. Jonovic, 69 Wis.2nd 622, 230 N.W. 2nd 760 Nese as ag dbbans (hea b6ere ss 6.644 saw 10 Mercer v. Theriot, 377 U.S. 152 (1964) ............. 16 Neely v. Eby Constr. Co., 386 U.S. 317 (1967) ........ 14 Sayen v. Rydzenski (7th CCA, 1967), 387 F2nd 815... 10 Sievers v. Keebler Company (7th CCA, 1973, decision not published,) reported affd. 487 F2nd 1404 .......... 8 Smith v. Uniroyal (7th CCA, 1970), 420 F. 2nd 438 .... 10 Valiga v. Nat. Food, 58 Wis.2nd 232, 206 N.W.2nd 377, EI a ee ee ee 1] Wisniewski v. U.S., 353 U.S. 901 (1957) .............. 6,9 Texts or Articles Cited Fairchild, Recent Developments in (Wis) Tort Law, 1962, ff Le ke PPrrerrreerr rrr TiTerere er 12 Harlan, “Manning the Dikes”, 18th Annual Cardozo ete oR Cann bakes eaneseeees 6 SA, Moore’s Fed.Prac., Sec. $0.02 ....... .....s000. 1] IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1975 eee BERNARD J. COLLINS and MARIAN COLLINS, Petitioners, VS. THE RIDGE TOOL COMPANY, Respondent. PETITION FOR A WRIT OF CERTIORARI To the United States Court of Appeals for the Seventh Circuit Your Petitioners, Bernard J. Collins and Marian Collins, pray that a Writ of Certiorari issue to review the Judgment of the Circuit Court of Appeals entered on September 15, 1975, which reversed a jury verdict and judgment in favor of the plaintiffs entered in the United States District Court for the Western Dis- trict of Wisconsin on February 19, 1972. OPINIONS BELOW The Opinion of the United States District Court for the West- ern District of Wisconsin sustaining the jury verdict in favor of plaintiffs dated January 26, 1973, is not reported but is annexed as Appendix A. a The Opinion of the Seventh Circuit Court of Appeals is re- ported in 520 F. 2nd 591 (1975) without reference to the pendency or disposition of a Petition for Rehearing In Banc and is annexed as Appendix B. On Petition for Rehearing In Banc, the Court of Appeals denied rehearing on October 14, 1975 by a vote of 7 to 3 with- out opinion. The Order Denying Rehearing is annexed as Appendix D. JURISDICTION The Opinion of the Court of Appeals was entered on August 13, 1975. A timely Petition for Rehearing In Banc was filed, which was denied by a vote of 7 to 3 without opinion. This Court has jurisdiction under 28 U.S.C., Section 1245 (1). QUESTIONS PRESENTED 1. Whether an intra-circuit conflict was created by the divided decision (2-1) in this case with prior decisions of the same Court of Appeals construing Wisconsin negligence and comparative negligence law. If there was such a conflict created, did the 7-3 vote on Petition for Rehearing En Banc, without opinion, fail to resolve the conflict, contrary to prior decision of the Supreme Court? 2. Did the divided-decision of the Court of Appeals misapply and conflict with applicable Wisconsin negligence and compara- tive negligence law and applicable Wisconsin and federal law as to sufficiency of the evidence to support jury findings? 3. Whether a Court of Appeals may redetermine questions of fact determined by a properly instructed jury, in the face of unifies conflicting credible evidence, and absent any error by the trial court, without depriving litigant-petitioners of their Seventh Amendment rights to a jury trial? CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED AMENDMENT VII, Constitution of the United States, pro- vides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be other- wise reexamined in any Court of the United States, than according to the rules of the common law.” The Wisconsin Comparative Negligence statute created in 1931 is also involved, and at the time of the accident in ques- tion, it was section 895.045 Wis.Stats., reading as follows: “895.045 Contributory Negligence; when bars recovery. Contributory negligence shall not bar recovery in an ac- tion by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering.” STATEMENT OF THE CASE Petitioner, Bernard Collins, was injured on November 28, 1967, while using a pipe threading machine manufactured by respondent, when his jacket became entangled in a rotating pipe at the front of the machine where the pipe protruded. As the — result of the injuries, his left arm was ultimately amputated. Petitioner, Marian Collins, is his wife. The machine in question had a power switch located on the side of the machine, recessed and under a housing, towards the rear. Collins was not injured until about 10 seconds after he first became entangled and after the machine tipped over, dur- ing which time he could not reach the power-switch. There was evidence that if there had been a top or near top mounted switch, or a foot switch, he could have cut off the power and avoided injury. Experts testified that the machine was unrea- sonably dangerous as to design because of the location of the power-switch, that top or near-top mounted switches were fea- sible and were used by respondent's major competitors, and a foot-switch was feasible. Substantial expert testimony was pre- sented at the trial by both parties as to whether the machine was Or was not unreasonably dangerous and the negligence of the manufacturer with respect to warnings and instructions. Petitioners commenced an action in the United States Dis- trict Court for the Western District of Wisconsin under Wis- consin products liability law, claiming that the manufacturer was negligent because the machine was unreasonably dangerous as to design, failure to warn, and inadequate imstructions. On February 19, 1972, a unanimous 12 man jury returned a verdict in favor of plaintiffs for damages in the total sum of $247,737.75. The jury found defendant-manufacturer causally negligent and allocated 65% of the total negligence to it. The jury found Bernard Collins causally negligent and allocated 35% to him. Defendant's motions for judgment n.o.v. and for a new trial were denied by the trial court by an Opinion and Order dated January 26, 1973 (App. A), stating that the jury's findings were not against the weight of the evidence. (App. A, A-2). <- a ts In accordance with Wisconsin Comparative Negligence Law, the District Court entered judgment in favor of plaintiffs for $161,029.54. Defendant made timely appeal to the Seventh Circuit Court of Appeals, and the case was argued in February. 1974. In a three-judge panel decision dated August 13, 1975, Indiana Dis- trict Judge Grant, and Circuit Judge Pell, appointed from Indi- ana, weighed the conflicting testimony and concluded that de- fendant’s product was safe. Senior Illinois District Judge Wil- liam Campbell surveyed the conflicting evidence, and, in a strong dissent, concluded that the verdict should be affirmed. Plaintiff made timely Petition for Rehearing In Banc, which was denied by a vote of 7 to 3 on October 14, 1975 without opinion. Petitioners herein seek review of the reversal by the Seventh Circuit Court of Appeals of the Judgment in favor of plaintiffs. REASONS FOR GRANTING THE WRIT I. The Majority Decision Herein (2-1, Judges Grant, Pell, with Campbell Dissenting) Created an Intra-Circuit Conflict With Prior Decisions of the Seventh Circuit Court of Appeals in McPhee v. Corinth Machinery Co. (Judges Hastings, Fair- child and Campbell; See App. E and F), and Sievers v. Keebler Company (Judges Fairchild, Sprecher, and Reynolds; See App. G and H) Construing Wisconsin Negligence and Comparative Negligence Law in Products Liability Cases. The Intra-Circuit Conflict Was Not Resolved. 1. If an intra-circuit conflict was created, as will be shown, the Supreme Court has directed that the Court of Appeals should resolve the conflict. Wisniewski v. U.S., 353 U.S. 901 (1957). Justice Harlan stated his view that such intramural conflicts should be avoided through later panels customarily deferring to decisions of prior panels. “Manning the Dikes,” 18th Annual Cardozo Lecture, p. 19. On Petition for Rehearing in Banc herein, decided October 14, 1975, Chief Judge Fairchild, then Judge John Paul Stevens, and Judge William Campbell, who wrote the strong dissenting opinion in this case, voted for rehearing. It is a reasonable con- clusion that these votes for rehearing implicitly indicated that the divided decision of the three-judge panel either (1) created an intra-circuit conflict with prior decisions of the same Court construing Wisconsin law, or (2) that the evidence was not such that the Court could say—as the majority did—as a matter of law that defendant-manufacturer was not negligent. 2. There was an intra-circuit conflict created by the majority decision in this case with prior decisions of the same Court con- struing Wisconsin law. _— we Uniquely, Wisconsin has had comparative negligence since i931, while no other State in the Seventh Circuit has it (Laws, Wis. 1931, c. 242). In Collins v. Ridge Tool Co., as in McPhee v. Corinth Ma- chinery Co. and Sievers v. Keebler Company—all arising in the U.S. District Court for the Western District of Wisconsin—the jury found plaintiff less negligent than the defendant-manufac- turer, and the trial judge (James E. Doyle) sustained the jury findings as to causal and comparative negligence and granted judgment to plaintiffs. In Collins the majority of the Court of Appeals overturned the verdict and judgment thereon, grounding the decision prin- cipally upon the basis that the danger of the rotating pipe was open and obvious, that Collins was fully cognizant of the hazards of his work (App. B-A 12) and he failed to exercise ordinary care to protect himself from a danger which he should have ap- preciated (App. B-A 13). Although the foregoing reasoning of the majority relied upon assumption of risk principles, Wisconsin abolished assumption of risk in the leading case of McConville v. State Farm Ins. Co., 1S Wis.2nd 374, 113 N.W.2nd 14 (1962), written by then- Wisconsin Supreme Court Justice Fairchild. The majority decision was so unpalatable to Judge William Campbell that, in this strong dissent, after reviewing evidence to support the jury’s and trial court's findings, he commented that the majority had substituted their evaluation of the record for the jury's, and “In my opinion the result reached by the majority improperly and inexcusably invades the province of the jury” (App. B, A-16) (Emphasis added). The conflict of the majority decision with prior decisions con- struing Wisconsin products liability laws, is irrefutable when prior decisions of the same court are considered. In McPhee v. Corinth Machinery Co. (7th C.C.A. decision unpublished, April 30, 1971, No. 18568, App. E), McPhee, a sawyer, lost both legs when he stepped on to a track ahead of a saw-carriage to dislodge the splinter from near the saw (App. E, A-20-21.) The trial court found plaintiff causally negligent as a matter of law in proceeding into the carriage area of the mill in the-man- ner he did, but left to the jury the questions of negligence of the manufacturer, cause, and comparative negligence. The jury found causal negligence on the manufacturer, allocated 80% negligence to it, and 20% to plaintiff. The trial court sustained the verdict. On appeal, the Court of Appeals affirmed, and held that it “can- not be said as a matter of law that McPhee’s causal negligence was equal to or greater than defendant's” (App. E, A-22). The reasons given by the majority in Collins for overturning the ver- dict, if applied to the facts in McPhee, would have resulted in reversal in McPhee. The noteworthy difference is that the Court of Appeals in McPhee did not exonerate the manufacturer be- cause the danger was open and obvious to the plaintiff. In Sievers v. Keebler Company (7th Cir., decision not pub- lished, Nov. 9, 1973, No. 69-C-155, reported affirmed 487 F. 2nd 1404, see App. G, H, 1), plaintiff was injured in an in- dustrial accident when his arm was caught in a machine man- ufactured by defendant. There was a verdict for plaintiff on comparative negligence, and the trial judge found that the find- ings were based upon substantial evidence, granting plaintiff judgment (App. I, A-41). The Court of Appeals, with two Wisconsin judges on the three-judge panel, affirmed, “adopted” the lower court decision (App. G, A-34), and, with respect to comparative negligence choice of law, cited Senior District Judge Campbell's opinion in Elston v. Morgan, 440 F.2nd 47, 50. In McPhee and Sievers, as contrasted to the majority in Col- lins, the Court of Appeals did not exonerate the manufacturer and impose all the causal negligence on plaintiff upon the basis that plaintiff's familiarity with the hazard of an open and obvi- ous danger required absolution of the manufacturer. _ The conflict created by the majority decision herein is mani- fest, real, and devastatingly confiscatory. The collision of that decision with Wisconsin law and prior decisions of the same Court of Appeals is fortified by the fact that the decisions in McPhee and Sievers involved a Wisconsin trial judge and Court of Appeals panels including Wisconsin Judges. It was consid- ered important in Dick v. New York Life, 359 U.S. 437, 447 (1958) by the Supreme Court, in reversing the Court of Ap- peals which had overturned the jury verdict, that “after all the evidence was in, the district judge, who was intimately concerned with the trial, and who has a first hand knowledge of the appli- cable state principles, believed that the case should go to the jury”. 3. The 7-3 vote on Petition for Rehearing In Banc, denying rehearing without opinion, did not resolve the conflict discussed, contrary to directives in Wisniewski v. U.S., supra. What dis- tinguishes the situation in Collins from that in McPhee or Sievers? Each involved a workman at his employment injured by an open and known hazard. The principles to be applied to jury verdicts and trial court judgments in all three cases should have been the same with the same result. A divided vote with- out opinion does not resolve the conflict. No distinction has been shown. The failure to resolve the manifest conflict, and the irrecon- cilability of the majority decision herein with the prior decisions, calls for intervention of the Supreme Court to correct a mani- fest injustice. Il. The Majority Decision Herein Collides With ana Is In- compatible With Wisconsin Law and Applicable Federal Law. 1. The decision of the court below fails to give effect to ap- plicable decisions of Wisconsin and federal courts as to the weight to be accorded jury findings and sufficiency of evidence to support the verdict. pa te The test of sufficiency of the evidence to support jury findings is substantially the same in Wisconsin as in the Seventh Circuit, viz., that where a jury verdict is attacked, the Court must con- sider the evidence and all inferences reasonably arising there- from in the light most favorable to the prevailing party; and if there is any credible evidence, which, under any reasonable view, supports the jury’s findings, the findings shouid not be set aside. Bruno v. Biesecker, 40 Wis.2nd 305, 312, 177 N.W.2nd 388 (1970); Smith v. Uniroyal (7th C.C.A.1970), 420 F.2nd 438, 440; Dazenko v. Hunter Mach. Co. (7th CCA 1968), 393 F. 2nd 287; Sayen v. Rydzewski (7th C.C.A. 1967), 387 F.2nd 815. The Statement of the Case herein and the dissenting opinion of Judge Campbell in Collins (App. B, A-14-16) state evi- dentiary facts in support of the jury findings. 2. The decision of the Court below fails to give effect to ap- plicable decisions of Wisconsin and the Seventh Circuit Court of Appeals as to changing jury answers or granting a directed ver- dict. The majority in Collins in effect change the answers to the jury verdict, so that the manufacturer’s negligence is redueed from 65% to 0 and Collins’ causal negligence is increased to 100%. In Wisconsin, the rule governing when it is proper to change a jury’s answer is that only if the record is devoid of evi- dence that would sustain the verdict, or if the evidence is in- credible, is it within the province of the trial court or the Su- preme Court to substitute its view of the evidence for that of the jury. Johnson v. Sipe, 263 Wis. 191, 56 N.W.2nd 852 (1952); Maichle v. Jonovic, 69 Wis.2nd 622, 626, 230 N.W.2nd 760 (1975). The comparison of negligence is peculiarly within the jury's province. Davis v. Skille, 12 Wis.2nd 482, 107 N.W.2nd 458 (1961). In effect, the majority in Collins direct a verdict in favor of the manufacturer. In view of the evidence, this could not have been done by the trial court or the Court of Appeals under prior decisions of the Seventh Circuit. 5A, Moore's Fed.Prac. § 50.02, pp. 3320-3330. The Seventh Circuit Rule, in diversity cases, is that State law controls as to when a verdict can be directed. Etling v. Sander, 447 F.2nd 593, 594 (1971). In Wisconsin “an issue should be taken from a jury only when the evidence gives rise to no dispute, or is so clear and convincing as reason- ably to permit unbiased and impartial minds to come to but one conclusion.” Valiga v. Nat. Food., 58 Wis.2nd 232, 206 N.W. 2nd 377, 382 (1973). The Statement of the Case and Judge Campbell's dissent in- clude evidentiary basis compelling denial of a change of an- swers or direction of verdict in favor of defendant-manufac- turer, rather than the result improperly accomplished by the majority. 3. The decision of the majority herein militates against ap- plicable Wisconsin negligence and comparative negligence law in products liability cases. The majority reversed because of Collins’ knowledge of the dangers in the operation of the machine, the hazards of his work, and his failure to exercise ordinary care to protect him- self from danger which he should have appreciated. This is applying assumption of risk to completely bar the plaintiff. That reasoning is repudiated in the decisions in McPhee and Sievers, supra, with Wisconsin judges on the appellate panels. Chief Judge Thomas Fairchild, then on the Wisconsin Supreme Court, wrote the decision in the leading case of McConville v. State Farm Mutual, 15 Wis.2nd 374, 113 N.W.2nd 14 (1962) which abolished assumption of risk. In McPhee, supra, the same Judge Fairchild, then on the Seventh Circuit Court of Appeals, voted for affirmance of the = verdict for the plaintiff where the latter was found negligent as a matter of law in proceeding into a known danger. In Collins the majority reaches a contrary result Emphatically corroborating our contention that the majority erroneously applied assumption of risk principles in conflict with Wisconsin law is the comment by then-Wisconsin Supreme Court Justice Fairchild in 46 Marq.L.R. 1, 5 (1962) that “In McCon- ville v. State Farm, supra, and Colson v. Rule, 15 Wis.2nd 374, 113 N.W.2nd 14 (1962) the Court abolished the defense of as- sumption of risk at least where the assumption is implied from conduct. The Court pointed out that one’s unreasonable ex- posure of himself to a particular hazard is negligence and sub- ject to the comparative negligence statute”. The disharmony of the majority with Wisconsin law is further demonstrated by the Wisconsin decisions that “conduct formerly called assumption of risk is also subject to the same rule of comparison as any other type of negligence; that McConville (abolishing assumption of risk) did more than change labels.” Bishop v. Johnson, 36 Wis.2nd 64, 152 NW 2nd 887 (1967). Wisconsin law following McConville v. State Farm, supra, said that an “obvious reason " why McConville abolished as- sumption of risk “was to extend the benefit of our comparative negligence statute to the plaintiff’. Dippel v. Sciano, 37 Wis.2nd 443, 461, 155 N.W.2nd 55 (1967). Conflictingly, the majority in Collins applied assumption of risk reasoning to deprive, rather than give, Collins the “benefit of our comparative negligence statute.” Further conflicting with Wisconsin law, the majority errone- ously construed the “duty” of the manufacturer to depend on the facts of the injury-causing event and the conduct and experi- ence of the plaintiff. This is not the law of Wisconsin. The duty aw 43 a» of defendant-manufacturer in Wisconsin is separately prescribed by law and is the same as to all users of products—even non- users. Howes v. Hansen, 56 Wis.2nd 247, 201 N.W.2nd 825 (1972). Insofar as the majority was concerned, the abolition of as- sumption of risk by McConville and the subjecting of such con- duct to comparative negligence, as provided by Dippel, did not change Wisconsin law. The majority decision is at war with Wisconsin law. Wisconsin law and Federal law in the Seventh Circuit re- quired that the jury verdict and judgment of the trial court be affirmed if there was any credible evidence to support the jury's findings, and the evidence has to be construed most favorably in support of the verdict. There was such evidence. The ma- jority of the Court did not construe the evidence in conformity with these rules. If Wisconsin law had been correctly applied in Collins, and if Wisconsin law had been applied consistent with prior decisions of the Seventh Circuit Court of Appeals construing the same law, an affirmance of the jury verdict and judgment of the trial court was required. Petitioners are the victims of inconsistency and the misapplication of Wisconsin law by the majority. — III. The Redetermination of Facts by the Majority, in Con- flict With Applicable Wisconsin Law on Negligence and Com- parative Negligence, in Conflict With Prior Decisions of the Seventh Circuit Court of Appeals Construing the Same Law, in Conflict With Wisconsin and Federal Law as to Sufficiency of Evidence to Support Jury Findings, in the Face of Support- ing Credible Evidence, Without Error Committed by the Trial Court, Deprives Collins of Their Seventh Amendment Rights to a Jury Trial. The discussions in preceding sections of this Petition sup- port the contentions concerning the conflicts of the majority in the respects above mentioned. The majority finds no error in admission of evidence, no error in jury instructions, no error committed by the trial court, no misconduct by the jury, but undertook a de novo review of the evidence and found “error in the verdict.” A reading of the majority and dissenting opinions of the three judge panel of the Court of Appeals in this case leaves no doubt but what there was substantial conflict in the evi- dence in this case, mostly in the form of competing expert opinions as to the safety of the product which injured the plaintiff. Although this Court has held that the Court of Ap- peals may enter judgment n.o.v. on behalf of a verdict loser (Neely v. Eby Construction Co.) 386 U.S. 317 (1967), no decision of this Court has permitted an appeals court a lesser standard of review of a jury verdict than that imposed on the trial court. The majority did not disclose precisely whether it intended to apply a standard of review based upon state or federal law, but rather used terms such as “We are convinced,” “Accord- ingly, it is our opinion,” and “since we find.” (App. B, A. 13-14) The trial court, on the other hand, in affirming the —_— we verdict applied the following standard as to the defendant motion for judgment n.0o.v.: “For the purpose of this motion, I must determine whether the evidence along with all of the inferences to be rea- sonably drawn therefrom, when viewed in the light most favorable to the plaintiff, is such that reasonable persons in a fair and impartial exercise of their judgment might reach different answers to questions | and 2 of the spe- cial verdict . . .” (p. 1, App. A.) It is apparent that the panel of the Court of Appeals applied a standard of review which gave /ess weight to the verdict and the evidence than that applied by the trial court. In A. & G. Stevedores v. Ellerman Lines, 369 U.S. 355, 359 (1962) this court pointed out that: “.. . neither we nor the Court of Appeals can redetermine facts found by the jury any more than the District Court can predetermine them. For the Seventh Amendment says that ‘no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.’ ” (Emphasis supplied ) It is respectfully submitted that the test applied by the trial court in this case is a necessary “minimum” test of the suf- ficiency of the evidence under the Seventh Amendment. The test of the majority, couched in terms of being “convinced” or of “finding” facts from the evidence presented to the jury, is a test of a jury verdict not “according to the rules of the common law.” The test of the majority is particularly inadequate where no error is found in the admission of evidence, jury instructions, conduct of counsel, or conduct of the jury. — The necessity for determining a reasonable minimum standard for review of evidence in diversity cases is pointedly shown by examining what “reasonable persons in a fair and impartial ex- ercise of their judgment” have concluded concerning the evi- dence in this case. Twelve properly selected, properly-instructed jurors, the trial judge, and a senior district judge found evidence to support the verdict. A district judge and an appellate court judge, viewed the evidence favorably to the defendant. On mo- tion for rehearing, two more appellate judges joined the plain- tiffs’ view of the evidence, but the defendant still prevailed. The result in this case is precisely the wrong which the Seventh Amendment was intended to prevent. If substantial and uniform deference is not accorded the ver- dicts of juries in error-free trials in diversity cases, then the rights accorded to litigants by the Seventh Amendment are severely eroded. These rights of Collins were demolished by the majority decision. This Court has noted on two occasions the necessity of con- sidering in a definitive fashion whether a state or federal stand- ard should be applied in diversity cases in reviewing the suf- ficiency of evidence. Dick v. New York Life Ins. Co., 79 S. Ct. 921, 359 U. S. 437, 3 L.Ed. 2d 935 (1959); Mercer v. Theriot, 377 U. S. 152, 156 (1964). This undecided issue could be re- solved by the Court in one of at least two ways. (1) The Court could decide whether a state or federal standard should be uni- formly applied, or (2) the Court could determine a standard of review which meets the requisites of the Seventh Amendment in all cases. Petitioners submit that the standard of review ap- plied by the District Court in this case is a necessary minimum standard which the Court should determine must be applied in all diversity cases—whether in the name of state or federal law. In the case at bar the Court of Appeals has found no error whatsoever on the part of the trial court and has isolated for de — = termination the peculiar issue relating to the review of evicence in a diversity case. The review by the majority is incompatible with any permissible authority under Wisconsin Law or current law in the Seventh Circuit. Under the circumstances of this case, the majority decision in the Court below violates Collins’ Seventh Amendment rights. CONCLUSION Certiorari is warranted and should be granted in this case for the following reasons: 1. The decision of the Court of Appeals creates and fails to resolve substantial conflict with prior decisions of the Seventh Circuit in construing Wisconsin products liability and compara- tive negligence law. 2. The decision of the Court of Appeals manifestly conflicts with applicable Wisconsin products liability and comparative negligence law. 3. The decision of the Court of Appeals ignored applicable Federal standards applicable on appeal under law of the Seventh Circuit, Wisconsin law, and the Seventh Amendment. 4. The lower Court’s test of the sufficiency of the evidence to support the jury verdict and judgment raises the unresolved prob- lem of whether, in diversity cases, the state or the federal test of sufficiency of the evidence applies, and what the minimum stand- ard of the applicable test should be. 5. In the interests of justice, and in view of applicable Wiscon- sin and Federal law in the Seventh Circuit, the decision of the —_— = Court below should not be permitted to stand, and the judgment of the trial court should ultimately be reinstated. Respectfully submitted WILLIAM L. McCUSKER 25 W. Main Street, Suite 731 Madison, Wisconsin 53703 (608) 256-1841 Counsel for Petitioners APPENDIX = APPENDIX A In the United States District Court For the Western Distiixi of Wisconsin Bernard J. Collins and Marian Collins, Plaintift Vv. > 69-C-216 The Ridge Tool Company, a foreign corporation, Defendant. / OPINION AND ORDER Following the return of a special verdict by a jury herein, and the entry of judgment pursuant to the verdict, defendant has moved for judgment notwithstanding the verdict and, in the al- ternative, for a new trial. Motion for Judgment Notwithstanding the \ dict This motion is made on the grounds: (1) that there is no credible evidence that the defendant was negligent, that the product was unreasonably dangerous to the user, that the oper- ator was not provided instruction by the defendant and was not fully knowledgeable as to the proper operation procedures and positions, and that the hazard associated with the rotating pipe was not open and obvious and known to the plaintiff so as to render the absence of a specific warning meaningless, and (2) that as a matter of law the causal negligence of the plaintiff was greater than the causal negligence of the defendant. ——_ * For the purpose of this motion, I must determine whether the evidence, along with all of the inferences to be reasonably drawn therefrom, when viewed in the light most favorable to the plain- tiff, is such that reasonable persons in a fair and impartial exer- cise of their judgment might reach different answers to questions 1 and 2 of the special verdict, and different answers to whether the causal negligence of the plaintiff was greater than the causal negligence of the defendant (question 5). Here the evidence was clearly not sufficient to require reasonable persons to answer those questions only in the manner urged by the defendant. Motion for a New Trial Defendant's alternative motion is made on six grounds, three of which are that the verdict is against the weight of the evidence, that the amount of the damages is excessive, and that the inter- ests of justice require a new trial. Unless and except as a new trial may be required on any of the other three grounds, dis- cussed below, I am aware of no interest of justice which requires a new trial. The injuries sustained by the plaintiff Bernard Col- lins were severe; the resulting injury to the plaintiff Marian Col- lins was genuine; the sum awarded for loss of earning capacity was not unreasonable in view of the nature and extent of the plaintiff's injury and in view of his age, and in the verdict in this respect the jury demonstrated that it could not accept the glib estimate embodied in the bland, condescending, and sim- plistic testimony of plaintiff's expert; the amounts entered by the jury in answer to questions 6(a) and 6(b) were not unreasonably high. In determining whether the jury’s answers to any of the questions in the special verdict were against the weight of the evidence, I am not simply to substitute my responses for those of the jury; in the exercise of my discretion, I cannot say that my responses differed from the jury’s in such degree that I can hold its answers to be against the weight of the evidence. I will take up in sequence the remaining three grounds of the motion for new trial. = Defendant contends that it was error to receive certain evi- dence, over its objection. The disputed evidence related to: a “bossed” switch on a Ridgid 700; a foot switch improvised by the witness Nachreiner; and certain opinion testimony. There was no unfairness in permitting testimony concerning the Ridgid 700 simply as an illustration of the use of a boss to guard a switch button, and the testimony and demonstrations concerning the footswitch, all the subject of lively cross-examination, also fairly raised the question of a workable alternative to defendant's design as to switch location. The opinion testimony of the wit- nesses Nachreiner, Bollinger, and Skogen was well within per- missible limits; Nachreiner’s practical experience was consider- able; the limits on Bollinger’s and Skogen’s competence, and the infirmities in the bases for some of their opinions were ade- quately explored: the jury's award for reduced earning capacity is reasonable enough to indicate that defendant was not preju- diced by the testimony of George Delehanty. I do not understand the basis of defendant's motion with re- spect to the testimony of the witness Weibel concerning the re- fusal to receive opinion evidence of the witness Weibel regard- ing the “normal” operating positions of an operator during the cutting operation. For a witness to testify how the machine has been normally used by those who have been operating in the trade it would be necessary to establish the necessary foundation in terms of opportunity widely to observe such operations. I consider that the grounds for the defendant's motion which relate to instructions are serious grounds deserving of careful scrutiny and consideration. I accorded these contentions such scrutiny and consideration during the discussions with counsel while the instructions were being formulated. I have carefully reviewed these questions in considering the post-trial motions. I am not persuaded that the instructions were erroneous or preju- dicial to the defendant, and I believe the trial record adequately reveals the bases of my views. —" Order Upon the basis of the entire record herein, it is ordered that defendant’s motion for judgment notwithstanding the verdict and defendant’s motion for a new trial are hereby denied. Entered this 26th day of January, 1973. By the Court ‘s/ JAMES E. DOYLE District Judge ee — APPENDIX B 520 F.2nd 591 (1975) ***Note: Reported opinion makes no reference to Petition for Rehearing In Banc or Decision Thereon. In the United States Court of Appeals For the Seventh Circuit No. 73-1337 Bernard J. Collins and Marian Collins, Plaintiffs-A ppellees, vs. The Ridge Tool Company, Defendant-A ppellant. Appeal from the United States District Court for the Western District of Wisconsin. No. 69-C-216 James E. Doyle, Judge Argued February 19, 1974—Decided August 13, 1975 Before Pell, Circuit Judge; Campbell, Senior District Judge;* and Grant, Senior District Judge.** * Senior District Judge William J. Campbell of the Northern Dis- trict of Illinois is sitting by designation. ** Senior District J Robert A. Grant of the Northern Dis- trict of Indiana is sitting by designation. —_> Grant, Senior District Judge. Appellees Bernard J. Collins and Marian Collins brought the present action against appellant, The Ridge Tool Company, for injuries sustained by Bernard Collins while he was using a Rigid 300 Power-Drive designed, manufactured, and sold by appellant. The Rigid 300 is a port- able machine used by plumbers for cutting, reaming, and thread- ing pipe. When the machine is used to cut pipe in accordance with the instructions set forth in the Operator's Manual, the pipe is inserted into the unit, the speed chuck (a securing clamp) and centering devices are tightened, and the cutter is applied to the pipe and its blade tightened until it contacts the pipe. Then the power is turned on, and the cutter blade is tightened until the cut is completed. Appellee, a master plumber, had used the Rigid 300 and machines similar thereto on many occasions prior to the accident. Nevertheless, on 28 November 1967, while appellee was using the machine to cut a 12-inch section of pipe, the front of his jacket became entangled in the rotating pipe. The machine toppled over, and appellee sustained severe injuries to his left arm. Subsequently, the arm had to be ampu- tated immediately above the elbow. In the district court, the jury found both appellant and ap- pellee causally negligent; attributed 65% of the negligence to appellant and 35% to appellee; and assessed total damages in the amount of $247,737.75. After the damages were reduced to reflect the contributory negligence of appellee, judgment was entered against appellant in the amount of $161,029.54 to- gether with costs and interest. Thereafter, an order denying appellant’s Motion for Judgment Notwithstanding the Verdict or for a New Trial was entered. Appellant thereupon instituted the present appeal from the judgment and order in the court below. In support of its position on appeal, appellant Ridge Tool argues initially that it breached no duty to appellee as a matter of law. In this regard, appellant claims that it cannot be held liable where the danger associated with the Rigid 300 was open —*< pon and obvious and since the possibility of injury from contact with a moving part of the machine was readily apparent to appellee, a man who had owned and operated the machine “hundreds of times”. Further, the fact that the dangers inherent in the Rigid 300 were open and obvious, argues appellant, rendered unneces- sary the giving of any warning to the user. Finally, with respect to the issue of appellant’s duty to appellee, it is argued that the alleged lack of written instructions as to how to operate the Rigid 300 cannot support a finding of liability, given appellee's pust experience in using the Rigid 300 as well as his knowledge of its operating characteristics. Appellant also charges that the district court erred in ad- mitting expert testimony that the Rigid 300 was unreasonably dangerous; in admitting testimony with respect to the design features of the Rigid 700 and a foot switch device; and in its in- structions to the jury. Finally, appellant asserts that there is no credible evidence which supports the jury’s apportionment of negligence. In this r ,ard, it is argued that appellee’s negligence was clearly equal to or greater than any negligence of appellant; therefore, the jury’s verdict, including the individual damage awards, is so ex- cessive as to be unconscionable. Accordingly, appellant urges this Court, for the above-stated reasons, to set aside the verdict and judgment in the court below or, in the alternative, order a new trial. In response, appellees Bernard and Marian Collins claim that the Rigid 300 was unreasonably dangerous by reason of its de- sign, because the power switch was located in a place where it was inaccessible to anyone operating the machine from the front or left front. Additionally, they contend that under Wisconsin products liability law, the defense of “open and obvious danger” is not available to appellant as a complete bar to recovery. Rather, appellees argue that the conduct on the part of a user of an unreasonably dangerous product is subject to a compara- —_ tive negligence standard. It is asserted that the doctrine of com- parative fault takes into account defenses which would other- wise be absolute and treats them for the purpose of comparison under the name of negligence. In any event, appellees main- tain that even if the “open and obvious danger” defense does apply, the inaccessibility of the power switch on the Rigid 300 was a dangerous condition that was not open and obvious to appellee. Rather, it was a condition, says appellee, which most users would not discover, and a danger which most users would not appreciate until they were already entangled in the rotating pipe. Further, because of the inaccessibility of the switch, ap- pellees contend that the potential operator should have been warned to stand near the switch while running the machine. At the very least, appellees argue that appellant had an obligation to provide full and adequate instructions to potential users of the Rigid 300 regarding its safe operation. In further response to appellant's position in this appeal, appellees contend that the trial court did not err in admitting expert testimony that the Rigid 300 was unreasonably dangerous; in admitting testimony relating to the Rigid 700 and the foot pedal device; and in its instructions to the jury. Finally, appellees emphasize that the jury’s allocation of causal comparative negligence is supported by the evidence. In this re- spect, it is urged that the damage awards were neither excessive nor in disregard of applicable law, but rather accurately reflected and compensated appellees for the loss which they sustained. Accordingly, appellees ask this Court to affirm the verdict and judgment entered in the court below. It is axiomatic in products liability law, and appellant con- cedes, that a manufacturer is legally bound to design and build products which are reasonably fit and safe for the purpose for which they are intended. Nevertheless, it is equally clear that a manufacturer is under no duty to produce accident or fool- proof products. Zahora v. Harnischfeger Corporation, 404 —Y F.2d 172, 175 (7th Cir. 1968). Neither is the manufacturer an insurer that its product is incapable of producing injury. Garri- son v. Rohm and Haas Company, 492 F.2d 346, 351 (6th Cir. 1974). In determining the reasonableness of design, certain factors which should be examined include: 1) conformity of de- fendant’s design to the practices of other manufacturers in its industry at the time of manufacture; 2) the open and obvious nature of the alleged danger; and 3) the extent of the claimant's use of the very product alleged to have caused the injury and the period of time involved in such use by the claimant and others prior to the injury without any harmful incident. Ward v. Ho- bart Manufacturing Company, 450 F.2d 1176, 1182 (Sth Cir. 1971). Other relevant factors, which are practical or economic in nature, include: 4) the ability of the manufacturer to eliminate danger without impairing the product's usefulness or making it unduly expensive: and 5) the relative likelihood of injury result- ing from the product's present design. Magnuson v. Rupp Manu- facturing, Inc., 171 N.W.2d 201, 208 (1969). As to the latter two factors, although we realize, upon our careful review of the record, that there was ample testimony in the court below by appellee’s experts that the switch on the Rigid 300 could have been relocated, or that a different switching system could have been incorporated into its design,there was also testimony elicited which indicated that there were no other machines similar to the Rigid 400 utilizing emergency control systems and that the incorporation of such a cut-off device would be costly as well as affect the utility of the product. While we believe that this testimony as to the feasibility or non-feasibility of installing alternative switching systems or relocating the switch on the Rigid 300 is indeed relevant to, and will not be overlooked in arriving at our decision in the present appeal, we are inclined to attach more significance to, and thus we now focus our attention upon, the issue which we believe, because of the particular cir- cumstances involved herein, will ultimately determine the out- come of the instant appeal; and that issue involves the alleged duty on the part of appellant herein to appellee in light of the — A-10 — argument that the danger to appellee, a master plumber with many years experience, was open and obvious. Appellant would have us follow what is generally known as the “open and obvious” rule enunciated in Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802, 804 (1950), and the equivalent of which this Court applied in Posey v. Clark Equipment Com- pany, 409 F.2d 560 (7th Cir. 1969). The “open and obvious” rule, simply stated, holds that a manufacturer of a product is under no duty to guard against or give notice of dangers which are obvious or patent to the user. Campo, supra, 95 N.E.2d at 804. In effect, Campo stands for the broad proposition that liability will not be imposed on the manufacturer unless there is a “latent defect”, irrespective of whether or not the injury was incurred by accidental or voluntary contact. Dyson v. General Motors Corporation, 298 F.Supp. 1064, 1072 (E.D.Pa. 1969). Although this doctrine has received wide support and has been applied in many jurisdictions,’ including this Circuit,’ there is an indication that the more recent trend of the cases evidences an increasing dissatisfaction with the Campo doctrine and opts instead in favor of an approach which reflects an effort to “dis- courage misdesign rather than encouraging it in its obvious form”, Palmer v. Massey-Ferguson, Inc., 3 Wash.App. 508, 476 P.2d 713, 719 (1970), and which further recognizes that “manu- facturers ought to make safer not more dangerous products.” Dorsey v. Yoder Company, 331 F.Supp. 753, 759 (E.D.Pa. 1 Stevens v. Durbin-Durco, Inc., 377 $.W.2d 343 (Mo., 1964); Parker v. Heasler Plumbing & Heating Co., 388 P.2d 516 (Wyo., 1964); Bradshaw v. Blystone Equip. Co. of Nevada, 79 Nev. 441, 386 P.2d 396 (1963); Tyson v. Long Mfg. Co., 249 N.C. 557, 107 S.E.2d 170 (1959); Standard Conveyor Co. v. Scott, 221 F.2d 460 (8th Cir. 1955); Jamieson v. Woodward & Lothrop, 101 U.S.App. D.C. 32, 247 F.2d 23 (1957); Brown v. General Motors Corp., 355 gh (8th Cir. 1966); Bowman v. Kaufman, 387 F.2d 582 (2nd Ir. ). 2 Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966): Neusus v. Sponholtz, 369 F.2d 259 (7th Cir. 1966). — A-ll — 1971). These and other authorities take the view, in general, that no distinction should be made between products whose dangers are obvious or latent to the user, in order to discourage misdesign even in its obvious form. Other commentators have said that the Campo doctrine should apply only when plaintiff appreciates the danger inherent in the product. | Frumer & Friedman, Products Liability § 702, p. 117 (1974). Although we take notice of the fact that this Court has in the past aligned itself with the so-called Campo rule, Posey, supra, 409 F.2d at 563-564 and Downey v. Moore's Time-Saving Equipment, Inc., 432 F.2d 1088, 1092 (7th Cir. 1970), we would be remiss if we failed to note that both of those cases were based upon and involved the application of Indiana law. In the present appeal, nevertheless, it is undisputed that Wisconsin law governs the issues at bar. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). Accordingly, we are constrained to determine the is- sues herein presented as we believe the Wisconsin courts would under the circumstances. The leading Wisconsin case in the area of products liability appears to be Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967), interpreting the earlier holding of McConville v. State Farm Mutual Automobile Ins. Co., 15 Wis.2d 374, 113 N.W.2d 14 (1962). In McConville, the Wisconsin Supreme Court stated that the defense of assumption of risk should be treated as con- tributory negligence. Dippel, in turn, explained that the reason for this was to subject the conduct of the user of an unreason- ably dangerous product to a comparative negligence standard. Appellee argues, then, that his duty “to use ordinary care to protect himself from known or readily apparent danger”. Dippel, supra, 155 N.W.2d at 63, defines his duty with respect to open and obvious hazards, and that any negligence on his part should be, and properly was in the trial court, treated as an item of contributory negligence for purposes of comparison with the causal negligence or fault of the appellant under Wis. Stats. § on £83 895.045 (1969). On the other hand, appellant urges us to follow Yaun v. Allis-Chalmers Mfg. Co., 253 Wis. 558, 34 N.W.2d 853 (1948), as standing for an adoption by the Wis- consin Supreme Court of the open and obvious rule concerning products liability. While we have no quarrel with appellee's interpretation of the law of Wisconsin as it applies to this case, and while we must not in applying that law to the case at bar subscribe to the Campo doctrine in its pure sense, we are of the opinion that the question of whether a danger is open and obvious to a user of a particular instrumentality is not a matter which should be determined in a vacuum. Rather, the unique facts of each case should bear on the question, and thus, in our opin- ion, includes the status, intelligence, and more importantly, the training of the particular user involved. In this regard, we be- lieve that the facts of the instant case require us to consider additional factors, some of which have been noted above, in determining whether, under the circumstances of the instant case, the dangers associated with the Rigid 300 were indeed open and obvious to the appellee, Bernard Collins. The first of these factors which we consider to be particularly applicable to the facts of this case is “the extent of [appellee's] use of the [Rigid 300, the product] alleged to have caused [his] injury and the period of time involved in such use by [appellee] . . ._prior to the injury without any harmful incident.” Ward, supra, 450 F.2d at 1182. Second, we are persuaded that a manufacturer's duty to impart information as to the safe use of its product, whether it be by warnings or instructions, is significantly mini- mized where the user is a member of a particular trade or pro- fession with regard to a danger that is generally known to that trade or profession. Littlehale v. E. 1. duPont de Nemours & Co., 380 F.2d 274 (2nd Cir. 1967); Lockett v. General Elec- tric Company, 376 F.Supp. 1201, 1209 (E.D.Pa. 1974). Cer- tainly the intended user's training and experience must be con- sidered where the issue of a manufacturer's duty to guard against — A-13 — and apprise of danger is concerned. Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841, 858 (Sth Cir. 1967). With regard to the first factor, it is undisputed that appellee herein had, at the time of the accident, “owned five Rigid 300’s", and prior thereto had accomplished a pipe operation with the Rigid 300 “hundreds of times”. Appellee further tes- tified that he appreciated and was fully aware of the danger of being entangled in the pipe while it was turning in the machine. As to the second factor, it is uncontested that appellee was a master plumber for several years prior to the date of the acci- dent. Therefore, he had many years of training and experience in using and operating the machinery indigenous to his business, and had attained enough expertise, in fact, to have risen to the Status of a master plumber. We are convinced, then, that ap- pellee was a professional in his trade who, because of past ex- perience, had to be fully cognizant of the hazards involved in his work. Accordingly, it is our opinion that although there were no emergency switches or warnings directly on the Rigid 300 itself, and even though there were no warnings or instruc: tions in the Operator's Manual which was furnished with the unit telling the operator where to stand while cutting pipe (ex- cept for a photograph which depicts an operator in the process of cutting pipe), we have no alternative but to conclude, on the basis of our review of the record herein, that there is no evi- dentiary basis, given appellee's knowledge and background, for finding that appellee's injuries resulted from the negligence of the manufacturer. In this regard, we hold that appcllee’s injury did not result from any inherent defect in the Rigid 300 either in design or faulty construction. Rather, it is inescapable that the unfortunate injury to appellee, which we indeed acknowl- edge as grave, in our opinion resulted solely from a careless mistake in operation. We have no doubt. therefore, that appel- lee failed to use ordinary care to protect himself from a danger which he, of all people, should have readily appreciated. Dippel, supra, 155 N.W.2d at 63. Accordingly, since we find that the = fp6< Rigid 300 was reasonably safe for its intended use, taking into account the training and experience of the persons for whose use the machine was intended, and that appellee’s negligence was the sole cause of the injuries sustained, we find error in the verdict in the court below. We conclude, therefore, because of our holding that the sole cause of the accident was the negli- gence of appellee Bernard Collins, that it is unnecessary to ad- dress the other issues which the appellee has raised before this Court. Accordingly, the judgment of the district court is Reversed and the cause is Remanded for the entry of judgment in favor of appellant, The Ridge Tool Company. CAMPBELL, dissenting. I would have affirmed the judgment of the district court “from the bench” following oral argument, in view of the clear absence of any isswe of law upon which reversal might conceivably be premised. The product in question is a portable machine used by plumb- ers for cutting, reaming and threading pipe. Its motor is en- cased in a housing which is mounted on a tripod. The power switch is located in a recessed area on the underside of-the housing. If the operator is standing on this side of the ma- chine, the switch is easily within his reach; however, if he is operating the machine from the front or opposite side, the switch is not readily accessible. When Collins’ jacket became entangled in the rotating pipe, he was unable to reach the power switch. By the time one of his employees turned the power off, Collins’ left arm had been broken, dislocated and mangled, re- quiring amputation above the elbow. The Rigid 300 is not equipped with any kind of emergency power cut-off device. Neither the machine nor the operator's — A-15 — manual furnished by the manufacturer contains any warnings alerting the potential user to operate the machine from the power switch side or cautioning against the danger that loose clothing might become entangled. It was plaintiff's contention that such warnings should have been given and that the Rigid 300’s design rendered defendant's product unreasonably dangerous. The design defects alleged by the plaintiff related to the location of the power switch and the absence of any emergency cut-off device. Plaintiff introduced a considerable amount of expert testimony to support these con- tentions, including evidence regarding the feasibility of relocat- ing the power switch on the machine so that it would be ac- cessible from all operating positions, and evidence that it would have been feasible and relatively inexpensive to equip the ma- chine with an emergency cut-off device (“kill-switch”), located either on the top of the machine or in the form of a foot switch. Without extensively reviewing the evidence introduced by plain- tiff, suffice it to say that a considerable amount of evidence, in the form of expert testimony and otherwise, was introduced in support of plaintiff's claim that the Rigid 300’s design rendered it unreasonably dangerous, and that the danger of injury was enhanced by the manufacturer's failure to post warnings on the machine or in the operator’s manual. The jury was properly charged with the task of determining whether the design of defendant's product rendered it unrea- sonably dangerous, and if so, whether this dangerous condition was the principal cause of Collins’ injuries. The jury concluded that plaintiff's injuries were caused by the dangerous condition of the product and by the negligence of the plaintiff, apportion- ing 65% of the responsibility to the defendant and 35% to plaintiff, in accordance with Wisconsin law. The conclusion reached by the majority is not based upon a finding that the trial court improperly instructed the jury or that plaintiff's theory of liability was legally insufficient. Nor — A-16 — is it grounded upon a finding that evidence was improperly ad- mitted, or that some other trial error was committed. It is based solely on the majority's factual determination that defend- ant’s product “was reasonably safe for its intended use . . . and that appellee's negligence was the sole cause of the injuries sus- tained .. .”. After reviewing a cold record, the majority thus substitutes their evaluation of the evidence for that of-a jury which saw the witnesses and heard their testimony at trial. In my opinion, the result reached by the majority improperly and inexcusably invades the province of the jury. I would affirm. —_ APPENDIX C United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 September 22, 1975 By the Court: Bernard J. Collins and Marian ) Collins, Appeal from the United Plaintiffs-A ppellees, States District Court for the Western District No. 73-1337. vs. of Wisconsin. (69 C 216) Tus Ridge Tool Company, Defendant-Appellant. } In light of the fact that the mandate in this cause was in- advertently issued on September 12, 1975 during the pendency of this Court’s consideration of appellees’ petition for rehear- ing en banc, It Is Ordered that the mandate in this case be, and the same is hereby, Recalled. — A-18 — APPENDIX D United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 October 14, 1975 Before Hon. Thomas E. Fairchild, Chief Judge Hon. Luther M. Swygert, Circuit Judge Hon. Walter J. Cummings, Circuit Judge Hon. Wilbur F. Pell, Jr., Circuit Judge Hon. John Paul Stevens, Circuit Judge Hon. Robert A. Sprecher, Circuit Judge Hon. Philip W. Tone, Circuit Judge Hon. William J. Bauer, Circuit Judge Hon. William J. Campbell, Senior District Judge* Hon. Robert A. Grant, Senior District Judge* Bernard J. Collins and Marian ) Collins, Appeal from the United Plaintiffs- Appellees, States District Court . for the Western District No. 73-1337. VS. of Wisconsin. No. 69-C-216. The Ridge Tool Company, James E. Doyle, Judge Defendant-Appellant. - On consideration of the petition for rehearing and sugges- tion that it be heard en banc filed in the above-entitled cause, a majority of the panel having voted to deny the petition for * Senior District Judge William J. Campbell of the Northern Dis- trict of Illinois and Senior District Judge Robert A. Grant of the Northern District of Indiana are sitting by designation. — A-19 — rehearing,’ and a majority of the active members of the court having voted to deny a rehearing en banc,? It Is Ordered that the petition for rehearing and suggestion that it be reheard en banc be, and the same is hereby, Denied. ? Judge Campbell voted to grant the petition for rehearing. * Chief Judge Fairchild and Judge Stevens voted to grant a re- hearing en banc. — A-20 — APPENDIX E United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 April 30, 1971 Before Hon. John S. Hastings, Senior Circuit Judge Hon. Thomas E. Fairchild, Circuit Judge Hon. William J. Campbell, Senior District Judge’ John McPhee, Jr., and Sheri McPhee, ) Plaintiffs-Appellees, | Appeal from the No. 18,568 vs. | United States | District Court The Corinth Machinery Company, | for the Western a/k/a Corinth American Machinery District of Company, Wisconsin. Defendant-Appellant. ” ORDER This is a diversity action for personal injury. Plaintiff John McPhee, Jr., was injured while working as a sawyer. Plaintiff Sheri McPhee is his wife. Defendant Corinth Machinery Com- pany had supplied McPhee’s employer with components of a saw mill. A unit of the machinery, called the carriage, which runs on a track, unexpectedly moved forward and pushed McPhee into the saw. McPhee had been at his station, from which movement of the carriage is controlled, but, leaving the control lever in neutral, had stepped onto the track ahead of 1 The Honorable William J. Campbell, Senior District Judge, Northern District of Illinois, is sitting by designation. — A-21 — the carriage to dislodge a splinter from near the saw. Both McPhee’s legs were cut off. By special verdict the jury found defendant causally negli- gent in respect to (a) failing to provide a locking device (to hold the control lever in neutral) and (b) failing properly to inspect and supervise the installation. The court had answered ques- tions of the special verdict so as to find as a matter of law that John McPhee was causally negligent in respect to proceeding into the carriage area in the manner that he did. The jury found that John McPhee was not negligent in respect to activat- ing the control lever after proceeding into the carriage area and attributed 80% of the total causal negligence to defendant and 20% to John McPhee. Judgment was entered in favor of plain- tiffs for 80% of the damages found. The court denied defend- ant’s motions after verdict, and motions on which ruling had been reserved, except with respect to $111,000 awarded by the jury for impairment of earning capacity, which the court determined was greater than the evidence would support. The court found that $53,800 would reasonably compensate John McPhee for impairment of earning capacity and ordered a new trial on that issue unless John McPhee should accept an amended judgment based on the reduced amount. He so elected. De- fendant appealed from judgment in favor of Sheri McPhee for $120,000 and amended judgment in favor of John McPhee for $354,349.46, plus, in each case, interest and costs. We have considered defendant's arguments that the verdict cannot be sustained as a matter of law. We are satisfied that the evidence created jury issues as to the particulars in which defendant was found causally negligent and plaintiff was found not causally negligent. There was evidence from which the jury could find that defendant should reasonably have foreseen need for a locking device. Although the contract between de- fendant and McPhee’s employer did not expressly obligate de- fendant to inspect and supervise the installation of the com- — A-22 — ponents it supplied, there was evidence that in fact defendant sent its salesman out after the installation “to inspect to make sure that the equipment had been installed properly” and with authority to comment about any modification which had been made in the course of installation which would affect the opera- tion of the unit. Liability may be predicated upon negligence in performing services so volunteered. American Mutual Lia- bility Ins. Co. v. St. Paul Fire & Marine Ins. (1970), 48 Wis2d 305, 179 NW2d 864; Hartford Steam Boiler Inspection & Ins. Co. v. Pabst Brewing Co. (7th Cir., 1912), 201 F. 617; Wulf v. Rebbun (1964), 25 Wis2d 499, 131 NW2d 303. See Re- statement of Torts 2d, Sec. 324A, p. 142. We are also satisfied, as was the trial court, that it cannot be said as a matter of law that McPhee’s causal negligence was equal to or greater than defendant's. In the light of the serious injuries sustained by Mr. McPhee, the permanent impairment of the capacity to enjoy life, as well as economic loss, physical and emotional consequences shown, and the impact of all this upon Mrs. McPhee, we conclude that none of the damage awards (after reduction of one of them by the district court) is excessive. We have also considered the defendant’s several claims of error upon the trial. We find no prejudicial error. Accordingly, upon our review of the record, the briefs sub- mitted, and the oral argument, It Is Ordered that the clerk of this court enter judgment affirming the judgment and amended judgment appealed from. —_. APPENDIX F In the United States District Court For the Western District of Wisconsin John McPhee, Jr., and Sheri McPhee, . Plaintiffs, v. The Corinth Machinery Company, f 68-C-71. a/k/a Corinth American Machinery Company, Defendant. | OPINION AND ORDER This diversity action for damages for personal injuries was tried to a jury which returned a special verdict. The jury found that the defendant had been negligent in failing to provide a locking device on a sawmill machine and in failing properly to inspect and supervise the installation of the machine; and that this negligence in both respects had been a cause of the injuries of the plaintiff John McPhee. The court found as a matter of law that the plaintiff John McPhee had been negligent in pro- ceeding into the carriage area of the sawmill in the manner he had just prior to the accident, also found as a matter of law that his negligence had been a cause of his injuries, and entered answers to this effect upon the special verdict form. The jury found that the plaintiff John McPhee had not been negligent in another respect, namely, in activating the carriage control lever after he had proceeded into the carriage area. The jury apportioned 80% of the total causal negligence to the defendant and 20% to the plaintiff John McPhee. —_—S The court found that $17,136.83 was the sum which would reasonably compensate the plaintiff John McPhee for his medical and hospital expenses, and the court entered this sum on the special verdict form. The jury found that $11,000 would rea- sonably compensate the plaintiff John McPhee for his loss of past wages, $111,000 for impairment of his earning capacity, and $361,000 for his pain, suffering and disability in the past and in the future. The jury found that $150,000 would reason- ably compensate the plaintiff Sheri McPhee for the loss of the society and companionship of her husband John. At the close of the plaintiffs’ case, the defendant moved for a directed verdict, and renewed this motion at the conclusion of all the evidence. The court reserved rulings on both motions. Judgment has been entered awarding $400,109.46 (80% of his gross damages) to plaintiff John McPhee, and $120,000 (80% of her gross damages) to plaintiff Sheri McPhee. Defendant has moved for judgment notwithstanding the ver- dict (which motion is available to it, by reason of its motion for a directed verdict at the close of all the evidence) and, in the alternative, has moved for a new trial. Motion for Judgment Notwithstanding the Verdict The grounds for this motion are: (1) that there was no evidence of negligence on the part of the defendant; (2) that there was no evidence that the product of the defendant was in a defective condition when it left its possession or control, or that it was unreasonably dangerous to the user thereof when used as it was intended to be used; and (3) that as a matter of law the evi- dence showed that at least 50% of the total causal negligence was attributable to the plaintiff. The plaintiffs clearly chose to proceed at the trial on a com- mon law negligence theory, to the extent this theory is to be —_—~ distinguished from the so-called “strict liability” theory, Dippe/ v. Sciano, 37 Wis.2d 443 (1967). Therefore, I consider ground (2) of defendant's motion only as it bears on the negligence of defendant, referred to in ground (1). I test defendant's motion by inquiring whether, viewing the record most favorably to the plaintiff, there is credible evidence: from which negligence on the part of the defendant could rea- sonably be inferred; and from which it could reasonably be in- ferred that less than 50% of the total causal negligence was at- tributable to the plaintiff. I conclude that there is credible evi- dence to support both inferences. There is credible evidence from which the jury might reason- ably have inferred the following facts, among others: While Operating the machine, the plaintiff (“the plaintiff’ will mean plaintiff John McPhee hereinafter, unless otherwise stated) brought the log carriage to a stationary position on the tracks by placing the hand lever in a neutral position; that he then pro- ceeded down into the carriage track area to a point between the Stationary carriage and the revolving saw blade; that without any force being applied to the hand lever by plaintiff or by any other person, the carriage began to move toward him, struck him, and forced him into the saw blade. In similar situations other sawyers in the industry entered comparable areas in which the unexpected movement of the log carriage would create a danger to persons in its path on its tracks. A manufacturer of such equipment might reasonably have been expected to be aware of this practice. Certain component parts of the saw- mill equipment sold by defendant to plaintiff's employer were not designed so as to render the equipment safe for its intended use, particularly with respect to the danger that the carriage, while stationary, might begin to move without human interven- tion. Defendant accepted and actually undertook to discharge certain responsibilities in inspecting and supervising the installa- tion of the machine in the plant of plaintiff's employer, and in so — A-26 — doing it failed to perform its duty to exercise reasonable care to give adequate warning of dangers attendant upon the proper use of the machine or warning of the facts which made such dangers likely. The danger that the carriage might move, although the hand lever had been placed in a neutral position, was not open and obvious to an operator. Since the court had found the plaintiff casually negligent, as a matter of law in proceeding into the carriage area in the man- ner that he did, it became the duty of the jury to compare his causal negligence with the causal negligence of the defendant. It is a rare occasion on which the court is permitted to set aside the comparison determined by the jury. This should be particu- larly rare in situations in which the kinds of causal negligence to be compared are so dissimilar. For example, to compare the failure of lookout on the part of one automobile driver with the failure of lookout on the part of another may sometimes be an exercise simple enough to permit the court to conclude that the jury has performed it wholly erroneously. But it is difficult to draw a similar conclusion when the jury is called upon to com- pare the causal negligence of the defendant in design and in inspecting and supervising the installation of the machine with the causal negligence of the plaintiff in entering the carriage area in the manner he chose. I cannot conclude, as a matter of law, that the latter equalled or exceeded the former. Motion for a New Trial In the alternative, defendant has mceved for a new trial on 14 grounds. The comments I have made with respect to defend- ant’s motion for judgment notwithstanding the verdict are gen- erally applicable to grounds numbered | through 5, and 13. It is necessary only to add a conclusion, which I now do, that not only was there credible evidence from which the jury’s answers to the special verdict could reasonably be inferred, but that this evidence was substantial; I exclude for the present the answers to the damage questions, which I will discuss below. —_ The record of the trial adequately discloses the court's rea- sons for the rulings now challenged by the defendant in grounds numbered 7, 8, 10, 11, and 12 which relate to the empaneling of the jury, evidentiary rulings, a refusal to give certain re- quested instructions, a motion for mistrial because of allegedly improper behavior by the attorney for the plaintiff, and the form of the special verdict. Ground 9 is a contention that the court erred in giving certain instructions, over objection. The principal contention here ap- pears to relate to an instruction that it was the duty of the de- fendant to determine that the equipment it sold was designed “sO as to render it safe for its intended use.” Form instruction 1370 promulgated by the Board of Circuit Judges of the State of Wisconsin includes this language: “[I]t is the duty of a manu- facturer to exercise ordinary care in the design, construction, and manufacture of its product so as to render such product safe for its intended use.” The instruction given with respect to the defendant manufacturer’s duty to warn is a virtually ver- batim repetition of Wisconsin form instruction 1371. Defendant also objects to an instruction which the court gave explaining the operation of the Wisconsin Workmen’s Compensation Act. The trial record will disclose that the matter of workmen's compensation wove its way into the trial, in significant part on the defendant's initiative, to such an extent that the wisest and most practical course ultimately appeared to be to make its operation accurately known to the jury. Ground 14 is that “the interests of justice” require a new trial. Except for the matter next to be discussed in ground 6, I believe that the interests of justice do not so require. Ground 6 includes a contention that the verdict of the jury as to damages is excessive and perverse, that the percentage of causal negligence attributed to plaintiff is contrary to the law and the evidence, and that the jury's verdict in these two respects — A-28 — appears to have been given under the influence of passion, bias and prejudice. I have already concluded that there was sub- stantial credible evidence to support the jury’s comparison of the causal negligence of the plaintiff and the defendant. I turn now to the jury’s answers to the damage questions. I conclude that none of the answers to the damage questions was perverse, and that none appears to have been given under the influence of passion, bias, and prejudice. Except for the jury's answer with respect to the impairment of the earning ca- pacity of plaintiff John McPhee, I conclude that none of the damages awarded by the jury to either plaintiff was excessive. There was substantial credible evidence to support the award for loss of past wages. It would be difficult to overvalue the damages suffered by the plaintiff John McPhee in the past, and certain to be suffered in the future, with respect to pain and suffering; impairment of health, physical ability, and bodily functions; disfigurement; humiliation, embarrassment and worry: and deprivation of usual activities, benefits and enjoyments. The same can be said of the damages suffered by Sheri McPhee by deprivation of her husband’s aid, assistance, comfort, and so- ciety, past and future. I conclude that the award of $111,000 to plaintiff John-Mc- Phee for impairment of his earning capacity is excessive. At the time of the accident, based on an hourly rate of $1.60 an hour, and a work week of 40 hours, his annual gross income would have been about $3300. The jury might reasonably have concluded that his earnings as a sawyer or in other active em- ployment would increase over the years. An estimated annual average of $5000 gross income over his working life would have been reasonable. Despite his extreme disability, it would have been unreasonable to suppose that he would be totally unable to earn money during his life. An average annual impairment in the sum of $3500 would have been reasonable. His life ex- — A-29 — pectancy was 37 years. It would have been reasonable to assume that at least 30 of these would have been productive. The present value of $3500 per year for 30 years, at a rate of five per cent per annum, is about $53,800. I conclude that the jury award of $111,000 for impairment of earning capacity was not due to perversity or prejudice, and was not the result of error occurring during the course of the trial. I conclude that it was excessive, probably because the jury encountered difficulty with the factor of economic inflation and with the concept of reducing to present value an award for future loss of earnings. I conclude that $53,800 is a sum which will reasonably com- pensate plaintiff John McPhee for impairment of his earning capacity. Order It is ordered that the defendant’s motion for a directed verdict, made at the close of plaintiffs’ case, is hereby denied; that the defendant's motion for a directed verdict, made at the close of all the evidence, is hereby denied; and that the defendant’s motion for judgment notwithstanding the verdict is hereby denied. It is further ordered that the verdict with respect to the award for impairment of earning capacity of plaintiff John McPhee is hereby set aside, and that the judgment herein in his favor is hereby amended by being reduced by the sum of $88,800 (which is 80% of $111,000) and that the defendant's motion for a new trial is hereby granted with respect to the issue of damages for impairment of earning capacity, and that the defendant’s motion for a new trial as to all other issues is hereby denied; provided, however, that the plaintiff John McPhee may elect, in lieu thereof, to have an amended judgment entered herein in his favor, reduced from the present judgment by $45,760 (which is 80% of the difference between $111,000 and $53,800) if the — A-30 — plaintiff, John McPhee, by his attorney, notifies the court within 20 days hereafter by letter, with a copy to opposing counsel, that elects to accept the entry of an amended judgment, reduced by said sum of $45,760, and to remit to defendant any sum which he may already have received in excess of the total amount awarded to plaintiff John McPhee by said amended judgment. Should plaintiff John McPhee elect to appeal from this order, the time within which he may notify the court of such election will be automatically extended until 20 days fol- lowing the date of notification to counsel for the plaintiff that the mandate of the appellate court has been received by the clerk of this court. Entered this 2nd day of March, 1970. By the Court: /s/ JAMES E. DOYLE District Judge APPENDIX G (Note: Opinion not published; noted in 487 F.2nd 1404, lower court affirmed.) United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Oral Argument May 30, 1973 November 9, 1973 Before Hon. Thomas E. Fairchild, Circuit Judge Hon. Robert A. Sprecher, Circuit Judge Hon. John W. Reynolds, District Judge* James A. Sievers, Plaintiff-Appellee, | No. 72-1628 VS. Keebler Company, a Foreign Corpora- tion, Appea! from the United States Dis- trict Court for the Western District of Defendant-Appellant, ] Wisconsin. VS. No. 69-C-155 James E. Doyle, McCleary Industries, Inc., Judge Third-Party Defendant. ) ORDER It ls Ordered and Adjudged by this court that the judgment of the United States District Court for the Western District of Wisconsin entered in this cause be affirmed on the opinion and order of the said district court. Sievers v. Keebler, Case No. 69-C-155 (W.D. Wis., Nov. 30, 1971). * Chief District Judge John W. Reynolds of the Eastern District of Wisconsin is sitting by designation. — A-32 — The district court determination that Wisconsin’s compara- tive negligence law is “better” law than Illinois’ contributory negligence is consistent with prior decisions of this court and the Illinois and Wisconsin Supreme Courts. Judge Campbell discussed the issue in Elston v. Morgan, 440 F.2d 47, 50 (1971), stating: “* * * It is, of course, regrettable that the State of Illinois here bars one of its citizens so seriously injured from any recovery whatsoever simply because of its con- tinued adherence to this cruel and antiquated doctrine, in- herited long ago from the courts of England and long since discarded by that country. The harsh Illinois doctrine of contributory negligence barring any recovery was recently again before the Supreme Court of Illinois in Maki v. Frelk, 40 Ill.2d 193, 239 N.E.2d 445 (1968). In that case the majority opinion recognized that the doctrine should be discarded in favor of a more modern compara- tive negligence doctrine, but felt compelled to defer to the legislature to make the change. The excellent dissenting opinion written by Mr. Justice Ward, with Mr. Justice Schaefer concurring, took the position that the contribu- tory negligence doctrine was judicially created in Illinois and that therefore the court had the responsibility to make the change. In his dissent, the learned Justice stated: “I am unpersuaded by the argument that there are prac- tical considerations which dictate a retention of the con- tributory negligence rule. We are told that the adoption of comparative negligence would increase litigation and court congestion, encourage negligent driving and cause insurance rates to be raised. The reply to such “practical” argument is that the dominating questions before our court are whether the old rule contended for is one often of harshness and unfairness and whether the rule proposed for adoption would better serve to attain more just dis- positions in negligence cases. The so-called practical — A-33 — considerations advanced must properly be considered as subordinate to the primary concern for more just judicial dispositions of these cases. Secondly, and persuasively, the evidence assembled of life under a comparative negligence form fails to confirm the fears expressed by the defendant and the amicus. See Maloney, From Contributory to Com- parative Negligence: A Needed Law Reform, 11 U.Fla.L. Rev. 135, 162 (1958); Bress, Comparative Negligence, 43 A.B.A.J. 127, 130 (1957); Peck, Comparative Negli- gence and Automobile Liability Insurance, 58 Mich.L.Rev. 689, 726 (1960); and Rosenberg, Comparative Negligence in Arkansas Before and After Surgery, 13 Ark.L.Rev. 89, 108 (1959). 40 Ill.2d at 203-204, 239 N.E.2d at 451. “Indeed in our own Circuit, Wisconsin, with its en- lightened comparative negligence doctrine has completely confirmed the conclusion of Mr. Justice Ward in rejecting the so-called ‘practical’ arguments against the adoption of a comparative negligence standard by Illinois. Although it is to be hoped that the Illinois Legislature or the Illinois Supreme Court may soon heed Justice Ward’s admonition and consider anew whether the best interests of its citizens are served by permitting such unfortunate results as are presented here, it is beyond our power to do anything but follow the existing law of Illinois as was done by the trial judge.” The appellants argue that the recent Wisconsin Supreme Court decision in Hunker v. Royal Indemnity Co., 57 Wis.2d 588, 204 N.W.2d 897 (1973), requires a different result from that reached by the district court. We disagree. Neither of the concerned parties in Hunker were residents of Wisconsin. The court pointed out that no Wisconsin citizen suffered by the ap- plication of Ohio law. Id. at 610, 204 N.W.2d at 908. Sievers, the plaintiff in this action, was a Wisconsin resident. In addition, the Wisconsin Supreme Court held that the legal trend is to- wards laws, such as Ohio’s, which bar suits against coemployees. —_ Id. at 607, 204 N.W.2d at 907. Illinois’ contributory negligence law, which appellant seeks to have applied in this case, is, how- ever, anachronistic, and the legal trend is toward comparative negligence. In short, the Wisconsin Supreme Court held in Hunker that a recently enacted Ohio law should be applied in that suit between Ohio residents. It does not follow that Wiscon- sin would apply an anachronistic foreign law which bars re- covery to a Wisconsin citizen. We feel that the district court opinion, which we have adopted, is consistent with Wisconsin law and that the Hunker decision does not change that result. — A-35 — APPENDIX H In the United States District Court For the Western District of Wisconsin James A. Sievers, Plaintiff, v. Keebler Company, a Foreign Corpo- ration, | 69-C-155. Defendant and Third-Party Plaintiff, Vv. McCleary Industries, Inc., Third-Party Defendant. - OPINION AND ORDER This is a civil action for damages for personal injuries al- legedly arising out of an industrial accident in which plaintiff caught his arm in a machine designed and manufactured by the defendant in the State of Illinois and located at the plant of the third-party defendant in the State of Illinois. At the time of the accident and at the time of the commencement of this action, plaintiff was a citizen of the State of Wisconsin. Defendant is a Delaware corporation with its principal place of business in Illinois. The third-party defendant is an Illinois corporation with its principal place of business in Illinois. Jurisdiction is asserted under 28 U.S.C. § 1332. A pre-trial conference was held, at which time the question was considered whether the substantive law of Illinois or that of Wisconsin should be applied to the tort aspects of the case. — A-36 — Briefs have been filed on the above question, with which this opinion now deals. In determining whether to apply the substantive law of Illi- nois or that of Wisconsin, I must follow the choice-of-law rule that a Wisconsin Court would follow. Klaxon v. Stantor Elec- tric Mfg. Co., 313 U.S. 487 (1941); Korth v. Mueller, 310 F. Supp. 878 (W.D. Wis. 1970); Satchwill v. Vollrath Co., 293 F. Supp. 533 (E.D. Wis. 1968); Castonzo v. General Casualty Co. of Wisconsin, 251 F. Supp. 948 (W.D. Wis. 1966). Under Wisconsin law, the determination of which substan- tive law applies requires a two-step analysis. See Wilcox v. Wilcox, 26 Wis. 2d 617 (1965). The first step—a determina- tion of whether a true conflict of law exists—requires an analysis of the number of contacts with each of the competing jurisdictions and of the qualitative significance of those con- tacts. The second step—choosing which law is to apply— requires an analysis of the contacts of each jurisdiction in light of the “choice-influencing considerations” set forth in Heath v. Zellmer, 35 Wis. 2d 578, 596 (1967). The second step begins with a “weak presumption” in favor of the law of the forum. Heath, supra, at 597; Zelinger v. State Sand & Gravel Co., 38 Wis. 2d 98 (1968); Conklin v. Horner, 38 Wis. 2d 468 (1968). The contacts of the competing jurisdictions are not evenly distributed: Wisconsin is the forum state and the residence of plaintiff; Illinois is the place of business of defendant and of the third party defendant, place of accident and place of em- ployment of plaintiff. Although the location of the forum and residence of one of the parties are not facts which call for the application of the substantive law of one jurisdiction over that of the other, their presence in the instant case indicates that Wisconsin has a “significant interest” in the outcome of the —* controversy. Inasmuch as Wisconsin and Illinois have dispa- rate laws regarding the effect of a finding of negligence on the part of plaintiff,' and inasmuch as both jurisdictions have a significant interest in the outcome of the dispute, I find that a true conflict exists in the present action. Since a true conflict exists, it is not appropriate to decide which state’s negligence law shall apply simply by counting the number of contacts of each jurisdiction. Rather, resort must be had to the “choice-influencing factors” set forth in Heath v. Zellmer, supra, at 596: (1) predictability of results; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum’s governmental interests; and (5) application of the better rule of law. The Wisconsin Supreme Court has held consistently that the first factor has little relevance in tort actions. Heath, supra at 596. Although the Wisconsin Supreme Court has also generally found the second factor to be of little significance, defendant Suggests that the imposition of Wisconsin law in the present action might lead to a refusal of Illinois employers to employ Wisconsin residents because of the greater likelihood of em- ployee recovery under Wisconsin law. The third factor prompts no clear response. This court's greater familiarity with Wisconsin comparative negligence law In Illinois, a —» of contributory igence may bar any re- covery by the plaintiff. Maki v. Frelik, 40 Ill. 2d 193, 239 N.E. 2d 495 (1968); Prill v. City of Chicago, 317 Ill. App. 202, 46 N.E. 2d 119 (1942). Wisconsin, on the other hand, has a comparative neg- ligence statute under which the plaintiff's own negligence will bar his recovery only if it is as t as, or greater than, the negligence of the defendant. Section 895.045 Wis. Stats. (1969). (Statute in force at the commencement of this action). = AGG is balanced by the arguably easier applicability of a rule of law in which a plaintiff's negligence acts as a bar to recovery. See Heath, supra, at 600. In considering the importance of the advancement of the forum’s governmental interest, I must give this factor as much weight as would a state court. The Wisconsin Supreme Court States in Heath, supra, at pages 600-01: “It is the duty of our court to further Wisconsin's govern- mental interest as exemplified in the policies behind its law. The policy of our tort law is to provide compensation for persons who are injured by negligent conduct . . . To deny recovery for ordinary negligence is to defeat Wiscon- sin policy of compensating victims of ordinary negligence. It is the policy of Wisconsin to provide compensation to those persons whether they be residents of this state or whether they come from another jurisdiction.” Wisconsin's deeply entrenched commitment to the policy of comparative negligence is reflected in over 40 years of legisla- tive history.” Furthermore, recent pronouncements of the Wis- consin Supreme Court underscore Wisconsin’s commitment. See Heath, supra; Zelinger, supra; Conklin, supra. 1 conclude that the application of Illinois law which bars recovery for contribu- tory negligence would frustrate a longstanding and deeply rooted governmental interest of the State of Wisconsin. The fifth factor—application of the better rule of law—pre- sents different but somewhat overlapping considerations from those taken into account when advancing the forum's govern- mental interest. Contributory negligence has been described as * Further evidence of Wisconsin's commitment to the compara- live negligence principle is the enactment of an amended compara- tive negligence statute which liberalizes recovery for ordinary neg- ligence by the automatic 50 per cent bar rule. See Ses- sion Laws, ch. 47, 1971. — A-39 — a “discredited doctrine which automatically destroys all claims of injured persons who have contributed to their injuries in any degree, however slight.” Pope & Talbot, Inc. v. Hawn, 346 US. 406, 409 (1953). Comparative negligence law, however, im- plements a social policy of spreading the risk of loss due to ordi- nary negligence and of compensating its victims. While the doctrine of contributory negligence has its adherents, I find that Wisconsin law of comparative negligence is the “better rule of law.” See e.g., Decker v. Fox River Tractor Co., 324 F. Supp. 1089 (E.D. Wis. 1971); Frummer v. Hilton Hotels International, | Inc., 314 N.Y.S. 2d 335 (1969); Clough v. Liberty Mutual In- surance Co., 282 F. Supp. 553 (E.D. Wis. 1968). Accordingly, upon the basis of the entire record herein, It Is Hereby Ordered that Wisconsin substantive law shall apply to the tort aspects of the present action. Entered this 30th day of November, 1971. By the Court: /s/ JAMES E. DOYLE District Judge In the United States District Court For the Western District of Wisconsin James A. Sievers, Plaintiff, Vv. Keebler Company, a foreign corpo- ration, Defendant and 69-C-155 Third-Party Plaintiff, v. McCleary Industries, Inc., Third-Party Defendant. ORDER Defendant Keebler has moved, timely, for judgment notwith- standing the verdict. The principal basis for the motion is that lilinois law of contributory negligence, rather than Wisconsin law of comparative negligence, should have been applied. -This question was considered and decided prior to trial and I ad- here to that decision. In the alternative, defendant Keebler has moved for a new trial. I find and conclude that the verdict was based upon sub- stantial evidence. My reasons for denying defendant leave to introduce portions of the deposition of John Richmond are em- bodied in the record, and I adhere to them. The same is true of my reasons for choosing the form of the special verdict, and my reasons for applying the Wisconsin rule of comparative negli- gence rather than the Illinois rule of contributory negligence. — A-41 — Defendant objects to the instructions relating to the duty of a workman, the duty of a manufacturer to warn, and the duty of an installer or servicer of a product; the contention, among others, is that these instructions reflected Wisconsin law, rather than Illinois law; but there is no showing by defendant that IIli- nois law differs on any of these points, nor was such a contention made during the trial, so far as I can now recall. With respect to the instructions on each of these points, I conclude that there was substantial credible evidence which made each of them ap- propriate. For the reasons stated herein and elsewhere in the record, It Is Hereby Ordered that the motion for judgment notwithstanding the verdict is denied and the motion for a new trial is denied. Entered this 30th day of March, 1972. By the Court: /s/ JAMES E. DOYLE District Judge --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1565%3A1. Public record. Not legal advice.