Fischer v. Cleveland Punch and Shear Works Co.

• Citation: 91 Wis.2d 85,280 N.W.2d 280
• Decision Date: 27 August 1979
• Docket Number: No. 76-337,76-337
• Parties: Richard C. FISCHER and Karen G. Fischer, Plaintiffs-Respondents and Cross-Appellants, v. The CLEVELAND PUNCH AND SHEAR WORKS COMPANY and Allen-Bradley Company, Defendants-Appellants and Cross-Respondents.
• Court: United States State Supreme Court of Wisconsin

Page 280

280 N.W.2d 280

91 Wis.2d 85

Richard C. FISCHER and Karen G. Fischer Plaintiffs-Respondents and Cross-Appellants, v. The CLEVELAND PUNCH AND SHEAR WORKS COMPANY and Allen-Bradley Company, Defendants-Appellants and Cross-Respondents.

No. 76-337.

Supreme Court of Wisconsin.

Argued May 29, 1979.

Decided June 29, 1979.

Reconsiderations Denied Aug. 27, 1979.

Roger L. Wiedeback (argued) and Prosser, Wiedaback & Quale, S. C., Milwaukee, on brief for defendants-appellants Cleveland Punch and Shear Works Co.

Thomas O. Kloehn (argued), Peter W. Bunde, O. Thomas Armstrong and Quarles & Brady, Milwaukee, on brief, for defendants-appellants, and cross-appellants Allen-Bradley Co.

John K. Brendel (argued) and Brendel, Flanagan & Sendik, S. C., Wauwatosa, on brief for plaintiffs-respondents and cross-appellants.

CALLOW, Justice.

This is an appeal from a judgment awarding damages to the plaintiff for injuries suffered when the ram on a punch press came down on his arm. The defendants challenge the sufficiency of the evidence to support the jury verdict that the manufacturer of the press and the manufacturer of the foot control were causally negligent. The defendants also maintain that it was error to submit both negligence and strict liability questions to the jury and that the jury verdict was inconsistent in that it found the products not unreasonably dangerous but did find the defendants causally negligent in the design of the machine. Other issues are presented. We affirm the judgment.

Richard Fischer was employed by Capitol Stampings Corporation (Capitol). Following his apprenticeship in tool and die making, he worked in the tool room for several months where he prepared the dies for the presses. The dies were then placed on the presses by "setup men." Fischer had no instruction in the operation of the presses. In the fall of 1970, at age twenty-three, he assumed supervisory duties in the shop on a trial basis. This was in preparation for a possible career as a sales engineer for Capitol, according to the testimony of Capitol's president.

On January 28, 1971, one of the machine presses, manufactured by The Cleveland Punch and Shear Works Co. (Cleveland), was outfitted with a repiercing die to enlarge the hole in the center of the sprockets being manufactured. The top part of the die was clamped to the ram; the bottom attached to the bolster plate. When activated, the ram would descend, punching out a slug creating a larger hole in the sprocket being manufactured. The punched out slug would fall through a hole which had been cut into the bolster plate. At about 9 a. m. the operator of the machine complained to Fischer that the slugs were accumulating around her feet. The setup men were busy, so Fischer agreed to help her clear away the scrap slugs. She said she had pressed the stop button and was going to the restroom. Fischer also pressed the stop button to make sure the machine was off. As he began to look at the machine, his supervisor yelled to him. Fischer walked over to him so that he could hear what he was saying. His supervisor told him the machine was on. When he replied that he had shut if off, the supervisor said that he should not put his hand in the machine because the flywheel was still running. Fischer talked with another man for a few minutes and then ascertained that the flywheel was stopped. He put his arm through the die cavity into the bolster plate and moved the slugs around when he noticed the ram sliding down upon his arm. His arm was almost severed about 21/2 inches above the elbow; the lower portion remained attached by a small piece of skin and by the radial nerve. The lower arm was surgically reattached.

Fischer and his wife brought a products liability action against Cleveland, the machine's manufacturer; L. L. Richards Machinery Company, Inc., its distributor; Allen-Bradley Co., the manufacturer of a foot switch installed on the press; and Holt Electric Motor Co., the firm installing the switch. The complaint alleged causes of action in strict liability and negligence against Cleveland and Allen-Bradley. Against Richards and Holt, Fischer's actions were grounded in negligence; and at the close of the case, the trial court dismissed the actions against Richards and Holt.

The trial court instructed the jury on the principles of negligence and of strict liability and submitted a special verdict inquiring as to both theories. The jury found the press and foot switch not unreasonably dangerous when they left the possession of Cleveland and Allen-Bradley, respectively, but found both defendants negligent as to design and construction. The jury apportioned the negligence as follows: 53 percent to Cleveland, 22 percent to Allen-Bradley, 13 percent to Capitol, and 12 percent to Fischer. The jury found that Fischer suffered damages of $120,000 for pain, suffering, and disability, and $120,000 for loss of earnings and earning capacity. The court fixed Fischer's medical expenses at $17,333.95. The jury found that Fischer's wife suffered damages of $7,500 for loss of her husband's society and companionship.

Postverdict motions were denied. From a judgment entered on the verdict, the defendants appeal. Fischer cross-appeals, contending that there was insufficient evidence of his contributory negligence to support the verdict and that the court should have increased the jury's finding as to his lost earnings and earning capacity.

The parties raise the following questions for review:

(1) Is there credible evidence to support the jury's verdict?

(2)(a) Did the trial court err in submitting both negligence and strict liability issues to the jury? (b) Was the verdict inconsistent?

(3) Did the court err in failing to change the jury's finding as to damages for loss of earnings and earning capacity?

(4) Did the trial court commit reversible error in (a) allowing Fischer's counsel to examine Allen-Bradley's expert adversely and permitting Allen-Bradley to recall the expert, (b) refusing to grant a mistrial based on the conduct of Fischer's counsel and wife during trial, (c) allowing a dictionary to be sent to the jury room?

The standard of appellate review of the sufficiency of the evidence to support a jury verdict has been stated as follows:

"In general, of course, this court will view the evidence in the light most favorable to the verdict, and affirm if there is any credible evidence on which the jury could have based its decision, particularly where the verdict has the approval of the trial court. Toulon v. Nagle (1975), 67 Wis.2d 233, 242, 226 N.W.2d 480. The credibility of witnesses and the weight given to their testimony are matters left to the jury's judgment, and where more than one inference can be drawn from the evidence, this court must accept the inference drawn by the jury. Valiga v. National Food Co. (1973), 58 Wis.2d 232, 244, 206 N.W.2d 377; Calero v. Del Chemical Corp., supra, 68 Wis.2d at 508."

Roach v. Keane, 73 Wis.2d 524, 536, 243 N.W.2d 508, 515 (1976).

A cause of action in negligence requires proof that the defendant failed to exercise ordinary care and that the act or omission complained of was the cause of the plaintiff's injury. Greiten v. La Dow, 70 Wis.2d 589, 601, 235 N.W.2d 677 (1975). Ordinary care involves the concept of foreseeability; if in the exercise of ordinary care a reasonable person would have foreseen injury as a consequence of his act, the act is negligent. Id. at 602, 235 N.W.2d 677; Osborne v. Montgomery, 203 Wis. 223, 234, 234 N.W. 372 (1931). The question of cause is a factual inquiry asking whether the defendant's negligence was a substantial factor contributing to the injury. Merco Distributing Corp. v. Commercial Police Alarm Co., 84 Wis.2d 455, 458-59, 267 N.W.2d 652 (1978). A finding of a causation must have a reasonable basis in the record; it cannot be based on conjecture. Id. at 460, 267 N.W.2d 652.

Fischer was the only witness to the accident. The evidence showed that in order for the ram to descend the clutch had to be energized. The evidence supports a conclusion this probably occurred when Fischer inadvertently stepped on the machine's foot control. Assuming the flywheel was dead, as Fischer testified, and that the ram descended upon his tripping the foot switch, the air pressure in the counterbalance system must have been insufficient to balance the ram, according to the testimony of expert witnesses Rice, Milhaupt, and Richardson. The air pressure in the system on the press was set at a predetermined level by a regulator. If the pressure in the company's lines were inadequate, the machines could not have been run by the operators. Capitol's president testified that, because company production consisted of many "short runs," the regulators on the presses were set at the maximum to obviate the necessity of constantly readjusting them; but he also testified that he did not check the regulator following the accident. This supports a conclusion that the air pressure regulator on the press in question was set too low or did not work to sufficiently counterbalance the ram as this machine was set up for this particular job.

Fischer's experts identified three design aspects which a jury might reasonably have found to constitute a lack of ordinary care.

First, the machine lacked an air pressure counterbalance switch. If the pressure of the counterbalance system fell below a fixed level, such a switch would automatically interrupt the supply of electricity to the control circuit, preventing activation of the clutch. James Rice, an engineer who worked in the industrial standards department at Allen-Bradley, and Professor Richardson, a Marquette University professor of mechanical and electrical engineering, termed the lack of an automatic switch a design defect constituting an unreasonable danger to the machine's user. Air pressure switches were available in 1968, the year the press was sold.

Second, the machine utilized...