dissenting:
I respectfully dissent from the opinion of the majority and would affirm the order of the circuit court. The result reached by the majority in this case appears to rest almost exclusively on the testimony of the defendant’s expert witnesses that a defective condition of the hoisting mechanism “could not have caused the bed to fall.” I do not think that the jury was bound to accept that testimony at face value, nor that this court should substitute its judgment as to the credibility of the witnesses and the proper resolution of conflicts in the evidence for that of the jury.
In the case of Bollmeier v. Ford Motor Co. (1970), 130 Ill. App. 2d 844, 265 N.E.2d 212, this court held that “direct or circumstantial evidence which tends to prove that the product failed to perform in the manner reasonably to be expected in the light of its nature and intended function, such as proof of a malfunction which tends to exclude other extrinsic causes, is sufficient to make a prima facie case * * (130 Ill. App. 2d 844, 851, 265 N.E.2d 212, 217.) In Bollmeier there was evidence of some unspecified malfunction which caused the plaintiff’s steering wheel to vibrate. He was injured when the car failed to respond as he attempted to negotiate a curve. Although vibration was always present when the car was driven, no difficulty had been experienced with the steering prior to the time of the accident. This court held that the jury could properly conclude from these facts that the failure of the product to perform as expected caused the plaintiff’s injury. After the wreck, there was no visible defect in the steering mechanism, and the wheels responded to the turn of the steering wheel. The court held these facts to be evidence for the jury’s consideration but not conclusive on the issue of whether or not the product was defective.
There were facts of record in the present case which I find sufficient to meet the Bollmeier test. Several witnesses testified that from the first day it was in use, the hoisting mechanism had never worked properly, that it had been sent back for repairs several times; in short, that it failed to perform in the manner reasonably to be expected in the light of its nature and intended function. The defendant’s witnesses purported to state all the possible ways in which the mechanism could fail, and purported to state definitively that no such failure could have caused the plaintiff’s injury. The jury, however, apparently believed that, regardless of what the specific defect was, some defect in the hoisting mechanism was the proximate cause of the plaintiff’s injury. The proximate cause of an injury is usually a question of fact to be determined by the trier of fact, and can only be raised as a question of law when the facts are undisputed and when there can be no difference in judgment of reasonable men as to inferences to be drawn therefrom. (Gelsumino v. E. W. Bliss Co. (1973), 10 Ill. App. 3d 604, 295 N.E.2d 110; Bouillon v. Harry Gill Co. (1973), 15 Ill. App. 3d 45, 301 N.E.2d 627.) The operator of the machine testified that he did not lower the bed. The plaintiff testified that he did not hit any lever. It is for the jury, not the appellate court, to resolve conflicts in the evidence and to judge the credibility of the witnesses. In my opinion, the verdict of the jury was supported by the evidence, and the defendant’s motions for directed verdict and judgment notwithstanding the verdict were properly denied.
I would affirm the order of the circuit court.