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June 23, 1970

Thomas G. CARULOFF, Plaintiff,

Cooper, District Judge.

The opinion of the court was delivered by: COOPER

COOPER, District Judge.

On November 26, 1969, following a trial lasting more than two weeks of this diversity action, the jury returned a verdict in favor of plaintiff Caruloff against defendant Emerson Radio & Phonograph Corp. (Emerson) in the amount of $300,000 as damages for injuries suffered by plaintiff when a retainer wire spring on a television tuner he was attempting to service sprang into his eye.

 Plaintiff alleged two separate causes of action against Emerson: First, that Emerson was negligent either because the design of the retainer wire spring was unsafe or because Emerson breached its duty to warn of the danger involved in removing the spring. Second, that by virtue of the alleged design defect Emerson breached its implied warranty of fitness of the product. Answering special interrogatories propounded them, the jury found Emerson negligent but found no breach of implied warranty.

 During the course of trial the parties agreed to reserve to the Court Emerson's third party claim for indemnity against Standard Kollsman Industries, Inc. (Standard Kollsman). Tr. 244. *fn1" Subsequent to the jury verdict, Emerson and Standard Kollsman with regard to the claim over stipulated and agreed on January 22, 1970 to rest upon the evidence adduced at the trial of the main action. The opinion which follows constitutes our findings of fact and conclusions of law on this third party suit pursuant to Rule 52, F.R. Civ. P.


 On June 4, 1963, Mr. Caruloff, a precision tool grinder and part-time television repairman residing in Lorain, Ohio, received a repair service order by telephone from a Mr. Topolav, also of Lorain, who complained that his television set was not working properly in that it had a snowy picture and no sound. Topolav's set was an Emerson television receiver, model 1104 J, manufactured by Emerson in 1955 and sold to him in Ohio in late 1955 or early 1956. Before going to Topolav's home with his repair kit, Caruloff re-read portions of the "Emerson Television Service Note," dated June, 1955 (Plaintiff's exhibit 3-D in evidence). Tr. 187-88, 394-95. It was established at trial to be customary for television servicemen to rely on a manufacturer's service manual, such as this, as their main source of technical information and instructions in servicing its television sets. Tr. 129-35, 635-36, 802.

 Arriving at Topolav's home, Caruloff was able to easily correct the audio problem by a tube replacement. Tr. 192. The problem of visual reception remained; so relying on his reading of the service manual and his prior experience he undertook to disassemble a portion of the tuner in order to clean it. Tr. 192-94. To gain access to the contact points in need of cleaning, he attempted to remove the tuner turret. Tr. 194-95. In order to accomplish this he sought to release one of the two 2 1/2 inch retainer wire springs which held the turret firmly in place. Tr. 194-95.

 While methods of cleaning the tuner not necessitating removal of the turret, or at least not requiring release of the retainer wire, were suggested by Emerson's witnesses at trial, there was nonetheless ample evidence to support the jury's finding that Caruloff was not contributorily negligent in following this course of action. Indeed, Emerson's own 1955 service manual (which plaintiff consulted) specified with respect to the tuner here in question:

"Repair of tuner part. * * * The majority of tuner troubles which are not due to defective tubes can usually be detected by a physical examination of the tuner (turret removed), such as burnt resistors, broken parts, bent or dirty contact fingers, cold solder joints, broken socket pins, etc." Emerson Television Service Note, June, 1955, p. 22.
* * *
"Repair of tuner. Most of the small components are readily accessible after the side shield cover is removed. The remaining parts are exposed when the turret is removed. To remove the turret, first take off bottom shield cover, then unhook wire springs on either end and lift out turret." Id. at 29. See also, id. at 33.

 Additionally, another serviceman with over twenty years experience testified that he followed this very procedure in cleaning such a tuner. Tr. 643.

 On Emerson sets manufactured prior to 1955 the two retainer wire springs were on the outside apron, clearly visible and easy to remove. One end of each wire was looped or hooked in a manner which held the wire in place and also prevented it from flying out upon its release. Caruloff testified that this loop on the end of the retainer wire spring was known among television servicemen as a "safety loop." Tr. 184-85. In 1951 Emerson pictured an exploded view of this design in its booklet "Emerson Television Receiver Notes, Turret-Type Tuner" devoted to the tuner. Plaintiff's exhibit 3 in evidence. Each of the succeeding Emerson manuals through and including the 1955 service manual in discussing the tuner refer to this 1951 booklet. Plaintiff's exhibits 3-A, B, C and D.

 In 1955, Emerson employed for the first time a tuner Standard Kollsman had been manufacturing for other customers since 1953 which permitted a combination of both VHF and UHF. *fn2" Tr. 236, 1035-44. This added feature necessitated a more complex and sophisticated design. Compactness was required to prevent an unduly bulky size. Tr. 1037-38. The UHF section was designed to mount flush with the front apron, and, as a result, the front retainer wire spring was relocated on the inside of the front apron. Tr. 1038, 1044. *fn3" Having placed the spring on the inside apron of the chassis, the confinement of space prohibited use of the loop. Tr. 1045-47. Therefore, the design of the spring wire was modified so as ...

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