Jurado v. Western Gear Corp.
| Citation | 253 N.J.Super. 263,601 A.2d 748 |
| Parties | , Prod.Liab.Rep. (CCH) P 13,112 Alfonso JURADO, Plaintiff-Respondent-Cross-Appellant, and Marlene Jurado, Plaintiff, v. WESTERN GEAR CORPORATION and Bucyrus-Erie Company, Defendants-Appellants-Cross-Respondents, and Western Gear Works, Orville Dutro and Sons, Bucyrus-Erie Corporation, John Doe, Richard Roe, ABC Corporation, XYZ Corporation, said names being fictitious, Defendants. |
| Decision Date | 22 January 1992 |
| Court | New Jersey Superior Court – Appellate Division |
Roger C. Wilson, West Orange, for defendants - appellants - cross - respondents Western Gear Corp. and Bucyrus-Erie Co. (Zucker, Facher & Zucker, attorneys; Roger C. Wilson, on the brief).
Amy Lynn Fenno, New York City, for plaintiff-respondent-cross-appellant Alfonso Jurado (Kenneth J. Fost, P.C., Morristown, attorney; Amy Lynn Fenno, on the brief).
Before Judges J.H. COLEMAN and KEEFE.
The opinion of the court was delivered by
KEEFE, J.A.D.
In this product liability action, defendants Western Gear Corporation and Bucyrus-Erie Company (referred to herein collectively as "defendant"), appeal from the entry of a judgment in favor of the plaintiff notwithstanding the verdict. 1 Plaintiff, Alfonso Jurado, cross-appeals from the trial court's denial of his motion for a new trial on the issue of damages. For the reasons stated herein we affirm the judgment notwithstanding the verdict but reverse the judgment denying plaintiff's motion for a new trial and remand for a trial on damages.
Plaintiff, an employee of N & W Printing, was injured while operating a collator machine manufactured by defendant. He was assigned to operate the machine by his employer and had been doing so for several years prior to the accident.
The machine, as its name indicates, was used to collate and assemble business forms with up to eight parts. Continuous rolls of paper were fed into the machine to the end that when the paper was properly cut and glued a fully assembled multi-sheet business form would result. At or near the end of the process, the perforated edge of the form (necessary for the feeding process but unnecessary for the final form), was removed by a rotating knife as the paper was fed through a rotating cylinder. The excess paper, called "salvage," entered a vacuum tube positioned below the table. The salvage was then discharged through piping supplied by the employer to a disposal bind also provided by the employer.
Plaintiff testified that the vacuum tube attached to the disposal unit would occasionally block from the build-up of salvage, requiring the operator to unclog it. Usually this could be done by using a blade-like tool apparently furnished by the employer. However, on occasion, the blade could not dislodge the material and the operator would then be required to remove it manually. According to plaintiff, the process of clearing the vacuum tube could only be accomplished by reaching under the table because the mouth of the tube was located just beneath the work surface.
The vacuum tube was positioned in close proximity to the aforementioned rotating cylinder. In the same vicinity of the cylinder and vacuum tube beneath the table, there was a metal support bar which ran across the width of the machine. The proximity of the metal support bar and the rotating cylinder created what the expert witnesses in the case described as an "in-running nip point."
On the day of the accident, scraps of salvage became stuck in the vacuum tube. Plaintiff reduced the speed of the machine and attempted to use the blade to clear the tube. He was unable to do so and attempted to remove the salvage with his hand. In doing so he either had to crouch or kneel and reach under the table and upward toward the opening of the tube. As he was attempting to dislodge the salvage, he lost his balance and in an effort to regain it reached out with his right hand. His right hand became caught in the nip point between the cylinder and the support bar.
Although an on/off switch was located at the operator's station close to where this accident occurred, plaintiff testified that his employer had instructed him not to turn the machine off when clearing the salvage because a shut down would ruin the sequence of the collation process. This fact was disputed by his employer.
Plaintiff's expert Gerald Weiner, a mechanical engineer specializing in machine design, testified that the machine was defective because the in-running nip point was unguarded and there was no warning about the danger of dislodging the clogged salvage without first turning off the machine. Weiner testified that a sheet metal guard would be easy to fabricate, would be inexpensive and would not affect the function of the collator. He reasoned that guarding was necessary in this instance because of the likelihood that the vacuum system would clog and the operator would have to manually dislodge the salvage.
The defense expert, Edward Schwalje, acknowledged that there was an in-running nip point where plaintiff's injury occurred. While acknowledging that in-running nip points are normally guarded when they are in the operating area or where inadvertent contact can occur, he believed that this nip point was guarded by its location. An area is guarded by location, according to Schwalje, when it is inaccessible in the normal activity of operating the machine. In his view, it took a deliberate effort to reach the nip point in question. He said that the collator was not intended to be accessed while it was in operation because it was designed to be stopped for that purpose. He reasoned that warnings would also be unnecessary in view of the fact that plaintiff was aware of the danger and knew the purpose of the on/off buttons. He opined that it is impracticable to warn about the danger of every moving part on a machine.
At the close of all of the evidence, plaintiff moved for a directed verdict based on Johnson v. Salem Corp., 97 N.J. 78, 477 A.2d 1246 (1984). The trial judge reserved decision on the motion and submitted the case to the jury.
After giving the jury appropriate instructions on the law, the trial judge asked the jury to answer the following questions:
1) Was the product as designed, manufactured or sold, defective, in that it was not reasonably safe for its intended or reasonably foreseeable uses?
2) Did the defect exist when the product left the hands and control of the defendant?
3) At the time of the accident, was the product being used for an intended or reasonably foreseeable purpose, that is, that it was not being misused or had not been substantially altered in a way that was not reasonably foreseeable? 2
4) Was the defect in the product a proximate cause of the accident?
The jury answered questions one, two and four in the negative. However, it answered the third question in the affirmative, thereby concluding that at the time of the accident the product was being used in an intended or reasonably foreseeable manner.
Notwithstanding a verdict in favor of the defendant, the trial judge instructed the jury to assess monetary damages. In compliance with that instruction, the jury assessed damages in the amount of $65,000.
Following the verdict, plaintiff moved for a judgment notwithstanding the verdict on the grounds that there was an inconsistency in the jury's findings on liability. The trial judge granted the motion indicating that it was his belief that the jury clearly misunderstood the facts or the charge. The trial judge then entered a verdict in favor of plaintiff in the amount of $92,514.18 plus fees and costs. (The $65,000 award found by the jury plus prejudgment interest.) Plaintiff moved for an additur or new trial on damages. That motion was denied. Thereafter, the appeal and cross-appeal were filed.
On appeal, defendant contends that there was ample evidence to support the jury verdict in its favor on the issue of defect and that the trial judge improperly inserted himself as the seventh juror. Defendant argues that the question of defect hinged on the credibility of the expert witnesses and the trial judge cannot resolve that credibility issue in favor of plaintiff.
We agree with the general proposition advanced by defendant. That is, where an issue hinges on credibility the resolution of that issue is ordinarily a jury function. Johnson supra, 97 N.J. at 92, 477 A.2d 1246. However, when testimony is reliable and uncontradicted, credibility is not a jury question. Id. at 93, 477 A.2d 1246.
[W]here the uncontradicted testimony of a witness, interested or otherwise, is unaffected by any conflicting inferences to be drawn from it and is not improbable, extraordinary or surprising in its nature, or there is no other ground for hesitating to accept it as the truth, there is no reason for denying the verdict dictated by such evidence.
Id. (citing Ferdinand v. Agriculture Ins. Co. of Watertown, N.Y., 22 N.J. 482, 498, ...
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Jurado v. Western Gear Works
...Division affirmed the judgment on liability in Jurado's favor and remanded to the Law Division for a trial on damages only. 253 N.J.Super. 263, 601 A.2d 748 (1992). We granted certification, 130 N.J. 7, 611 A.2d 647 (1992). We now reverse that part of the Appellate Division's judgment that ......
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Jurado v. Western Gear Corp., C-817
...v. Western Gear Corporation NOS. 34,839, C-817 Supreme Court of New Jersey Apr 30, 1992 Lower Court Citation or Number: 253 N.J.Super. 263, 601 A.2d 748 ...