Krugh v. Miehle Co.

• Decision Date: 20 September 1974
• Docket Number: No. 73-1697,73-1697
• Citation: 503 F.2d 121
• Parties: Eugene V. KRUGH, Plaintiff-Appellee, v. MIEHLE COMPANY, a foreign corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 121

503 F.2d 121

Eugene V. KRUGH, Plaintiff-Appellee, v. MIEHLE COMPANY, a foreign corporation, Defendant-Appellant.

No. 73-1697.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 6, 1974.

Decided Sept. 20, 1974.

Wheeler, Upham, Bryant & Uhl, by Buford A. Upham, Grand Rapids, Mich., on brief, for defendant-appellant.

Bruce M. Bieneman, Grand Rapids, Mich., for plaintiff-appellee; Cholette, Perkins & Buchanan by Grant J. Gruel, Grand Rapids, Mich., on brief.

Before CELEBREZZE and McCREE, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McCREE, Circuit Judge.

This is an appeal from a judgment for plaintiff entered upon a jury verdict in a diversity action for negligent design and breach of a statutory duty brought by an apprentice press assistant who lost the fingers of his right hand while cleaning transfer drums of an offset press manufactured and installed by appellant and sold to appellee's employer.

In 1967, plaintiff-appellee Eugene V. Krugh, then seventeen years old, entered the employ of the Simplicity Pattern Company in Niles, Michigan. On the evening of May 17, approximately five to six weeks after beginning his employment, Krugh, with Gerald R. Lewis, the second pressman, and Wilmer Oswalt, another employee, was working on a four color offset press manufactured by appellee and installed by it at Simplicity about a year earlier. The press was mounted on two concrete walls erected in a pit at a height to afford a clearance of approximately five feet to permit employees to work beneath the press.

The maintenance of the press required periodic manual cleaning of the transfer drums to remove accumulations of ink and dust. Cleaning was usually performed once during each shift and took from three to five minutes. The drums, large metal cylinders approximately nineteen inches in diameter and six to seven feet long, revolved in opposite directions during operation and cleaning. During cleaning the transfer drums were rotated by activating controls in the pit to expose the drum surfaces a portion at a time. When the 'inch' button was pushed, the drums would rotate a short distance and stop. A 'reverse' button permitted the cylinders to be moved in the opposite direction, and a 'stop' button with a lock ring enabled a worker in the pit to render the press inoperable. Gerald R. Lewis, Krugh's supervisor, testified that the procedure for cleaning the drums during his shift was to place the press on 'safe' by locking the 'stop' button before touching any moving parts. Lewis, as well as another Simplicity employee and Brandt, appellant's expert witness, also testified, however, that the proper cleaning procedure was to move the drums short distances with the 'inch' button, clean the exposed surface with a rag and solvent, and then move the durms again to expose other portions of the surfaces. The movements of the drums were visible and audible.

On the evening in question, Lewis, who was in charge of the cleaning operation, left the floor for a moment and, according to his testimony, directed Krugh and Oswalt who were in the pit under the press not to begin cleaning until he returned. Both Oswalt and Krugh testified, however, that they did not hear this direction and that they proceeded to clean immediately. According to Oswalt, Krugh was cleaning the drums while they were continuously in motion. Krugh testified, however, that he was cleaning by periodically pushing the 'inch' button in the manner already described, but that he knew that the cylinders had not completely stopped when his right hand was drawn between them and he sustained the injury. Although he admitted that he was aware of the likelihood of personal injury if his hand should be caught in the 'pinch point' between the two drums, he added that he was not aware that the transfer drums would rotate as much as they did when the 'inch' button was employed.

Other evidence was adduced concerning the extent to which the transfer drums might 'coast' after pressing the 'stop' button or after releasing the 'inch' button. An employee of appellant testified that the 'coast' could be as much as twenty inches after the 'inch' button was released. An expert witness for Krugh testified that the 'coast' could be as little as two inches or as much as forty-five inches depending upon the speed of the drums at the time the motor was 'de-energized' and that coasting after the inch button was released was 'significant'. No warning of the potentially hazardous coasting was ever relayed to appellee.

At the time that appellant manufactured the press that injured Krugh, there was at least one other press that had been designed to eliminate coasting. Moreover, in designing its own presses, appellant installed a barrier to protect operators from access to comparable zones of danger on the top side of the machine. Illumination of the top area of the press was excellent in contrast to the dimly lighted pit. There was also testimony that a similar safety guard on the underside of the press was practicable and would have prevented Krugh's injury.

As the result of his injury, Krugh was disabled from employment at Simplicity for three months until August 17, 1967, when he returned to work in the same capacity at the same wage. Thereafter he was employed at Simplicity at a higher wage until October 4, 1968, when he left because Saturday employment was inconsistent with his religious beliefs. At the time of trial Krugh was studying to become a nurse.

Shortly after the accident, Krugh sued the Mieble Company for breach of warranty and negligent design. The court directed a verdict for appellant on the breach of warranty claim, and submitted the case to the jury on the theories of negligent design and violation of section 15 of Act 285 of P.A. of 1909, M.S.A. 17.25 which makes unlawful the installation of machinery without proper safeguards. The essence of Krugh's complaint was that the extent of the coasting of the drums, particularly in the dark pit, was so hazardous that a safety guard was required and that it was a hidden or latent danger that required either warnings or a safety guard or both. The jury returned a verdict for Krugh in the amount of $73,496.59.

On appeal, the Miehle Company makes four assignments of error: (1) that the district court erred in instructing the jury that M.S.A. 17.25 was applicable in a suit brought against the manufacturer of a device by an employee of its purchaser; (2) that the district court erred in denying its motion for a directed verdict and for judgment n.o.v. because appellant breached no duty owed to Krugh and because Krugh was guilty of contributory negligence as a matter of law; (3) that the district court erred in refusing to give three requested negligence instructions; and (4) that the award of damages was excessive. We hold that the statute had no application to this case but that the district court did not err in submitting the case to the jury on the common law negligence claim and in refusing to give the requested instructions. Because a new trial is required, we do not decide whether the damage award was excessive.

M.S.A. 17.25 (M.C.L.A. 408.65) ¹ provides:

Machinery; safeguards; condemnation; inspection, fee

Sec. 15. It shall be the duty of the owner of any factory, storehouse or warehouse, or his agent, superintendent or other paeson in charge of the same, to furnish or supply, or cause to be furnished or supplied, and equip all machinery in use with proper shifters or other mechanical contrivances for the purpose of throwing belts on or off pulleys. It shall be unlawful for any person, firm, copartnership or corporation, to operate or cause to be operated, any of the machinery or equipment mentioned in this section, without it being first properly equipped with proper safety devices and guards. All gearing and belting shall be provided with proper safeguards, and when necessary, machinery shall be provided with loose pulleys. All vats, saws, pans, planers, cogs, set screws, gearing and machinery of every description shall be properly guarded. The commission after hearing duly had shall have power to condemn such machinery and wequipment if the same is unsafe, and stop the operation of such machinery and equipment until same be put in safe condition. It shall be unlawful for any person, firm or corporation, or agent thereof, to install or place in operation any of the machinery or equipment mentioned in this section unless the same be equipped with proper safeguards, or unless the same be approved by the commission or factory inspector. When requested in writing by any owner of such machinery or equipment, or agent of such owner, the commission shall within 6 days cause such machinery to be inspected. The commission, or factory inspector, as the case may be, shall determine whether such machinery or equipment is porperly guarded. The findings of the commission or inspector shall be in writing and a copy shall be furnished said owner, or his agent, and a copy shall be filed in the office of the commission at Lansing. A fee of not to exceed 5 dollars may be charged for each such inspection. Such fees shall be turned into the state treasury and placed in the general fund.

Appellant contends that this statute does not apply because: (1) it imposes liability for injury caused by unguarded machinery only opon owners of specified establishments on whose premises the injury occurs and not on suppliers of machinery; and (2) presses are not among the kinds of machinery regulated.

Since jurisdiction is based on diversity of citizenship, we must, in construing this statute, interpret it as the Michigan Supreme Court would were this case before it; and, in so doing, we employ Michigan principles of statutory construction. Moreover, we 'may (also) utilize the blessings of hindsight (in the realization that a) glance at the past will (often) reveal the considerations that led to the enactment of the...