Coger v. Mackinaw Products Co.

• Decision Date: 27 June 1973
• Docket Number: Docket No. 14076,No. 3,3
• Citation: 210 N.W.2d 124,48 Mich.App. 113
• Parties: Daniel Stephen COGER, Plaintiff-Appellee, v. MACKINAW PRODUCTS COMPANY, a division of Detroit Tap and Tool Company, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 124

210 N.W.2d 124

48 Mich.App. 113

Daniel Stephen COGER, Plaintiff-Appellee, v. MACKINAW PRODUCTS COMPANY, a division of Detroit Tap and Tool Company, Defendant-Appellant.

Docket No. 14076.

Court of Appeals of Michigan, Division No. 3.

June 27, 1973.

Released for Publication Sept. 10, 1973.

Jack Carpenter, Petoskey, for defendant-appellant.

Richard J. Zerafa, Elk Rapids, for plaintiff-appellee.

Before R. B. BURNS, P.J., and T. M. BURNS and PETERSON, ^* JJ.

T. M. BURNS, Judge.

This is a products liability case which centers upon a mechanical log splitter designed and manufactured by the defendant. The log splitter is a gasoline powered machine consisting of a ram which, when activated by the control lever located above and behind the ram, splits a log by forcing it into a wedge-shaped blade. The base or rail upon which the whole logs are placed is approximately 4 inches in width and measures 36 inches in length between the ram and the blade.

Plaintiff was employed by the United States Plywood Corporation in Gaylord, Michigan. On January 21, 1966, plaintiff and two co-workers were splitting logs with the aforementioned device. Plaintiff was engaged in placing whole logs on the rail between the ram and the wedge and stacking the pieces once the logs were split. A second employee was likewise occupied on the opposite side of the machine. The third employee operated the control lever which activated the ram and forced the logs against the wedge. Approximately a half-hour passed without mishap when as plaintiff was centering a log on the rail, the lever operator set the ram in motion and crushed plaintiff's right hand between the log and the wedge. As a result, plaintiff's right thumb, first finger and part of the palm were amputated in a subsequent series of operations. At the time of the accident plaintiff was 18 years old. He had previously worked with the log splitter and was familiar with it.

Ten months after the accident, plaintiff returned to work at United States Plywood Corporation in Gaylord. Since he was no longer able to do any heavy work, he was employed in a janitorial capacity. Plaintiff disliked this type of work and after a few months quit to take a position as a filling station attendant and mechanic.

In January of 1969, plaintiff filed suit seeking $156,400 in damages alleging Inter alia that the negligent design and manufacture of the log splitter was the proximate cause of his injury. Defendant replied charging that the contributory negligence of plaintiff, negligence on the part of the lever operator and the alterations in the machine's design were the proximate cause of plaintiff's impairment.

At trial plaintiff took the stand and testified that due to the width of the rail on which the whole logs were placed coupled with the vibrations of the gasoline engine, it was necessary to guide the log on the rail during the splitting operation. Plaintiff admitted, however, that the accident did not occur while the log was being guided on the rail. Plaintiff stated he was aware of the obvious danger and injury that would result if a hand was caught between the wedge and a log. He then described the accident as follows:

'I was setting the log on and had set the left end of the log down and was removing my hand from the right end of the log--my right hand--when the machine started and I yelled to Warren to stop, and he stopped it but my hand was already crushed on the wedge.'

Plaintiff also produced a safety design engineer as an expert witness. For purposes of qualification, a voir dire type examination of the witness was conducted. At the conclusion of the examination, the trial court ruled that the witness was qualified to testify. Upon recalling the jury, the witness recounted his prior employment and experience in investigating power press accidents and his examination of the log splitter. Based upon § 2.19 of the USA Standard Safety Code, which defines the elements of a power press, ¹ the witness found that the log splitter met the definition and the various guard-type safety devices described in Federal Department of Labor Bulletin #197, admitted as plaintiff's exhibit #8, were adaptable to the log splitter, none were found on the log splitter, and that had these safety devices been employed, the accident would not have occurred. He also stated that the warnings set out in the log splitter's instruction manual were limited to pointing out the fact that the wedge was sharp.

In addition, the physician who treated plaintiff's injury testified relative to the various operations performed on plaintiff's hand and indicated the possibility of future pain from the injury.

At the close of plaintiff's proofs defendant moved for a directed verdict. GCR 1963, 515.1. The trial court reserved its ruling and at the close of defendant's proofs denied the motion.

After plaintiff had rested, defendant called the designer of the log splitter to the stand. He testified that he designed the log splitter in 1963 and wrote the operating and maintenance manual. He described the manner in which the log splitter worked and discussed the fact that the height of the wedge on the splitter was 8 inches as contrasted with the 16-inch wedge found on the machine at the time of the accident. The witness indicated that as a consequence of such an alteration, there would be a tendency for the machine to stall. It was not stated that the alteration would contribute any other hazard, and we note at this point that plaintiff's hand was caught on the lower 8 inches of the wedge. The designer further testified that 4 safety features were incorporated into the log splitter: namely, (1) a plastic ball was placed atop the control level to prevent it from hurting the operator's hand, (2) the control level was removable to render the machine inoperative when left unattended, (3) a two-speed pump was employed to slow the speed of the log splitter when the wedge encountered a knot or the like, and finally (4) a lip was placed on top of the wedge to prevent the log from passing over it. The witness continued by stating that although he had safety in mind when he designed the log splitter, he had no formal education in design safety and he did not consult any safety standards when constructing the machine. While the witness admitted that the log splitter possessed components corresponding to the various elements contained in the USA Standard Safety Code definition of a power press, see footnote, 1, Supra, he attempted to distinguish the log splitter from a press. Throughout his testimony he indicated that the safety devices suggested by plaintiff's expert witness were impractical because such appliances would inhibit production and decrease profits.

Following the proofs, closing arguments, and the court's instructions, the jury returned a verdict in favor of the plaintiff for $156,400. Subsequently, defendant filed timely alternative motions for a judgment notwithstanding the verdict and a new trial. After considering the briefs and arguments submitted, the trial court denied the motions. Defendant appeals.

First defendant argues that plaintiff was guilty of contributory negligence as a matter of law and that the trial court erred in refusing to grant a directed verdict on that ground. We disagree.

The entry of a directed verdict in favor of a defendant which is based upon a plaintiff's alleged contributory negligence is only proper where from the evidence presented all reasonable men would agree that plaintiff was guilty of 'no care at all'. Normand v. Thomas Theatre Corp., 349 Mich. 50, 57, 84 N.W.2d 451, 454 (1957); GCR 1963, 515.1.

Defendant's allegation of contributory negligence is bottomed upon the fact plaintiff was familiar with the operation of the log splitter, he failed to watch either the ram or the lever operator and neglected to establish a set of hand signals with the lever operator. However, from the evidence presented, it is equally reasonable to assume that it was necessary for plaintiff to focus his attention on where he was placing the logs on the machine thereby foreclosing the opportunity to watch the lever operator or employ hand signals. This Court recently considered an analogous situation in Byrnes v. Economic Machinery Company, 41 Mich.App. 192, 202, 200 N.W.2d 104, 109 (1972), wherein an employee started an automatic labeling machine manufactured by the Economic Machinery Company and injured a second employee who at the time was repairing the internal workings of the machine. The defendant relied on the obvious danger rule to obtain a directed verdict. In reversing the directed verdict entered in favor of the defendant, we observed:

'It is true that plaintiff was aware of the risk and that many cases find no duty where the danger is obvious. This requirement must be considered in conjunction with the modern tort concept that awareness alone does not preclude negligence. A danger may be obvious but not appreciated. Even where a danger is appreciated, circumstances may cause it to be momentarily forgotten. It is also possible for the accident to occur even though the injured party proceeds cautiously in the face of an obvious danger.'

In view of the foregoing, it is clear that reasonable men could differ in finding whether plaintiff was guilty of no care at all. Accordingly, the circuit court did not err in refusing to direct a verdict in favor of the defendant and permitting the question of plaintiff's contributory negligence to go to the jury.

Second, defendant relying upon Fisher v. Johnson Milk Co., Inc., 383 Mich. 158, 174 N.W.2d 752 (1970), asserts that it was under no obligation to render the log splitter 'more safe' since its danger was obvious to all. From this defendant argues that it was entitled to a directed verdict as a matter of law on the question of the log splitter's safety design. Again, we cannot agree.

In Fisher plaintiff slipped and fell on an icy street...