Finnegan v. Havir Mfg. Corp.

• Decision Date: 24 April 1972
• Citation: 60 N.J. 413,290 A.2d 286
• Parties: Harry FINNEGAN and Mary Finnegan, Plaintiffs-Appellants, v. HAVIR MANUFACTURING CORP., Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 413

60 N.J. 413

290 A.2d 286

Harry FINNEGAN and Mary Finnegan, Plaintiffs-Appellants, v. HAVIR MANUFACTURING CORP., Defendant-Respondent.

Supreme Court of New Jersey.

Argued Jan. 25, 1972.

Decided April 24, 1972.

Alexander Avidan, Newark, for plaintiffs-appellants (Avidan & Avidan, Newark, attorneys; Alexander Avidan, Newark, on the brief).

Wilbur A. Stevens, Newark, for defendant-respondent (Stevens & Mathias, Newark, attorneys; Wilbur A. Stevens, Newark, on the brief).

The opinion of the Court was delivered by

PROCTOR, J.

This is a products liability case. Plaintiff Harry Finnegan was injured when his right hand was crushed by the ram of a power punch press he was operating for his employer, Arrow Metal Products (Arrow). Finnegan and his wife brought this suit for damages against Havir Manufacturing Corporation (Havir), as manufacturer, and Ralph Hochman & Co. and Wehrheim Machinery Co., as vendor and distributor of the punch press. The causes of action were grounded in negligence and strict liability. It was the plaintiffs' contention that the punch press was so dangerous in design that it should have been equipped with some form of safety device to protect the user while the machine was being operated. At the close of plaintiffs' case the three defendants moved for dismissal. The actions against Hochman and Wehrheim were dismissed by consent of counsel because there was no proof that they had sold or distributed the machine to Arrow. The motion by Havir was denied. At the end of the entire case Havir moved to dismiss and the trial court reserved decision and sent the case to the jury. Havir was found liable and Finnegan was awarded $28,555 and his wife $1,000. Thereafter Havir moved for judgment n.o.v. or a new trial. The trial court granted the motion for judgment n.o.v. Plaintiffs appealed to the Appellate Division and we certified the matter before argument there.

The punch press was manufactured by Havir in 1949 and sold that year to a hardware company in New York City. Subsequently, although the record does not disclose when or how, Arrow acquired the press. With the exception of a guard over the flywheel there were no safety devices of any kind on the machine when it was manufactured and shipped.

The press is a hand-fed machine of the single cycle type. As originally manufactured and sold it was activated by a foot pedal which engages the clutch which in turn engages the ram and starts the machine in motion, causing the ram to descend forcibly upon a piece of metal which has been placed on a die. At the end of each cycle or operation the ram ascends to a position of rest.

In March, 1966 Finnegan had been employed by Arrow at Haskell, New Jersey, for about two months, working nights. During his employment he operated various machines. On March 11, 1966, Finnegan reported to work at 4:30 P.M. and was assigned to various jobs in the plant. At about 10:00 or 10:30 that evening his foreman assigned him to work on the Havir punch press. Finnegan testified that he had never before operated a punch press. He said that the foreman demonstrated what he was to do, watched him operate the press two or three times and said, 'all right' and left.

Finnegan was directed to deburr aluminum discs about 4 6 1/8 thick. He said he sat in front of the machine, took a disc from a box on the right, placed it with his right hand on the die and stepped on a foot pedal which activated the machine. The ram would come down about two inches, stamping the disc and removing burrs from around the circumference. After this operation the ram would ascend and Finnegan would remove the disc with his left hand and place it in a box to his left. He estimated that he stamped six or eight pieces a minute during the time he operated the press. At about midnight his right hand was caught between the ram and die, resulting in the later amputation of two fingers and damage to a third. Finnegan was not clear as to what stage of the operation he was performing when the accident occurred.

John Salice, the foreman, testified in behalf of plaintiffs. He said that after demonstrating the use of the machine he told Finnegan, 'I will be right back' and left. He said he went to get long pliers or tongs so that Finnegan would not have to put his hands under the ram. Although in a pretrial deposition the foreman had stated that he told Finnegan he was going for the tongs and instructed him to wait until he returned, at the trial he was unsure whether or not he actually said those things to Finnegan.

Salice further testified that sometime after Finnegan's injury Arrow installed a two-hand push-button safety device which necessitates the placement of each of the operator's hands on buttons away from the die area in order to activate the machine. He said that this procedure 'considerably' slows up work.

Plaintiffs' expert, Harold Nickelsporn, a consulting engineer, testified that the machine had no safety devices when it was manufactured and none were installed before the accident. He said that prior to the accident the mechanical foot pedal which was installed by the manufacturer and was depressed to activate the machine had been replaced by an electrical foot pedal. In his opinion the accident was caused by a lack of coordination in tripping the foot pedal, together with the dangerous character of the machine, I.e., the absence of safety devices to prevent the operator from placing his hands beneath the ram when the press is activated. He said the press deviated from manufacturer's standards of safety in 1949 because it was made without safety devices or without warnings to the operator posted on the machine.

Nickelsporn stated that there were several safety devices available in 1949. He described two types. One was the push-button device which has two buttons so spaced as to require the operator to place each hand on a button away from the die area to set the machine in motion. He said that installation by the manufacturer of such a device would be a simple operation, and not a costly one. The other guard was a sweep device to prevent the operator's hands from entering the area between the ram and die when the press was activated.

On cross-examination when asked which of the safety devices he had mentioned should have been installed in 1949 by the manufacturer on presses like the one in question Nickelsporn said, 'As a minimum a two hand device . . ..' He stated, '(T)he least precaution the manufacturer should provide is a two hand button device which was well-known and would take care of any application of the press.' In response to an inquiry as to what course the manufacturer should take if the buyer didn't want a safety device but wanted to put on his own, the expert said that a safety guard 'should not be permitted to be added as an afterthought in a haphazard fashion by someone else.' He also said that the push buttons could be turned off and the press would be operated by a foot pedal.

Nickelsporn conceded that certain companies which manufacture punch presses did not put safety devices on the machines. However, he testified that one company, Walsh Presses, which, in addition to power presses manufactures safety devices, installs push-buttons on presses and that these push buttons were advertised in the company's catalog as 'ideal for all types of power press work . . ..'

Nickelsporn also pointed out that one manufacturer, Federal, currently installs the push-button device at the time the press is made.

Ralph Hochman, a dealer in metal working machinery and originally a defendant in this action, was called by the defendant. He testified that in 1949 it was the practice of the industry for the manufacturer to sell a press without any point of operation safety devices which prevent the operator from placing his hands under the ram when the machine is activated. As a dealer he does not and, in 1949, did not supply such safety devices with power presses. On cross-examination Hochman said he did not know if the push-button device would interfere with the operation of the punch press because he did not know all the 'facts.'

Defendant's expert, Isaac Stewart, a consulting engineer, testified that the design of the press in question was 'fine.' He said that the change in the activating mechanism of the machine--from a mechanical foot treadle to an electrical foot switch which is attached to a long wire and can be moved over a wide area--reduced the 'safety aspect' of the machine in that it increased the chances of accidentally kicking the switch and activating the press. He was of the opinion that this change was the cause of the accident. But on cross-examination he admitted that without safety devices the press was a hazardous machine and that the accident would not have occurred had the press been equipped with an effective point of operation safety device.

Stewart said that the nature of the safety device used in a particular operation would depend on the nature of the die and the manner of feeding the die. He stated that the push-button device would in some cases interfere with the operation of the machine such as where the operator is required to hold a long piece of metal which is to be cut at one end. On such an occasion at least one of the operator's hands would be holding the piece of metal and thus he could not depress both bottons. On cross-examination, however, he said that the press can be designed so that the push-buttons could be temporarily inactivated.

Defendant's expert further testified that it was customary for the user to install safety devices and that it would be 'impractical' for the manufacturer to install them unless the buyer informed him of the type of guard necessary for the operation to which the machine was to be put. However, on cross-examination he said, 'There have been innumerable injuries to people using power punch presses because of failing in the installation of point of...