Micallef v. Miehle Co., Division of Miehle-Goss Dexter, Inc.

• Decision Date: 08 April 1976
• Docket Number: MIEHLE-GOSS
• Parties: , 348 N.E.2d 571, 95 A.L.R.3d 1055 Paul MICALLEF, Appellant, v. MIEHLE CO., DIVISION OFDEXTER, INC., et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 115

384 N.Y.S.2d 115

39 N.Y.2d 376, 348 N.E.2d 571, 95

A.L.R.3d 1055

Paul MICALLEF, Appellant, v. MIEHLE CO., DIVISION OF MIEHLE-GOSS DEXTER, INC., et al., Respondents.

Court of Appeals of New York.

April 8, 1976.

Melvin Block and Bernard Meyerson, Brooklyn, for appellant.

Robert Devine, Stephen W. O'Leary and Stephen W. O'Leary, Jr., Jamaica, for respondents.

COOKE, Judge.

The time has come to depart from the patent danger rule enunciated in Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802.

This action was initiated to recover damages for personal injuries, allegedly resulting from negligent design and breach of an implied warranty. Paul Micallef, plaintiff, was employed by Lincoln Graphic Arts at its Farmingdale plant as a printing-press operator. For eight months he had been assigned to operate a photo-offset press, model RU 1, manufactured and sold by defendant Miehle-Goss Dexter, Inc., to his employer. The machine was 150 feet long, 15 feet high and 5 feet wide and was capable of printing at least 20,000 sheets an hour. Then, while working on January 22, 1969, plaintiff discovered that a foreign object had made its way onto the plate of the unit. Such a substance, known to the trade as a 'hickie', causes a blemish or imperfection on the printed pages. Plaintiff informed his superior of the problem and told him he was going to 'chase the hickie', whereupon the foreman warned him to be careful. 'Chasing a hickie' consisted of applying, very lightly, a piece of plastic about eight inches wide to the printing plate, which is wrapped around a circular plate cylinder which spins at high speed. The revolving action of the plate against the plastic removes the 'hickie'. Unsuccessful in his first removal attempt, plaintiff started anew but this time the plastic was drawn into the nip point between the plate cylinder and an ink-form roller along with his hand. The machine had no safety guards to prevent such occurrence. Plaintiff testified that while his hand was trapped he reached for a shut-off button but couldn't contact it because of its location.

Plaintiff was aware of the danger of getting caught in the press in 'chasing hickies.' However, it was the custom and usage in the industry to 'chase hickies on the run', because once the machine was stopped, it required at least three hours to resume printing and, in such event, the financial advantage of the high speed machine would be lessened. Although it was possible to have 'chased the hickie' from another side of the machine, such approach would have caused plaintiff to be in a leaning position and would have increased the chances of scratching the plate. Through its representatives and engineers, defendant had observed the machine in operation and was cognizant of the manner in which 'hickies were chased' by Lincoln's employees.

Samuel Aidlin, a professional engineer, had inspected the machine subsequent to the mishap. In his opinion, based upon the custom in the printing industry, it would have been good custom and practice to have placed guards near the rollers where plaintiff's hand entered the machine, the danger of human contact being well known. Moreover, he testified that at least three different types of guards were available, two for over 30 years, that they would not have impeded the practice of 'chasing hickies,' and that these guards would have protected an employee from exposure to the risk. Based upon the foregoing, both causes of action, negligence and breach of warranty, were submitted to the jury.

Although defendant was found negligent, recovery on that ground was barred by a finding that plaintiff had been contributorily negligent. However, on the breach of warranty claim, a verdict was returned for the plaintiff which defendant then moved to set aside. In a decision, rendered on May 25, 1973 and in which a motion, pursuant to CPLR 4404 (subd. (a)), to set aside the verdict in favor of plaintiff was granted, the Trial Justice stated that in charging the jury a distinction had been drawn 'between negligence and breach of warranty with regard to a plaintiff's contributory negligence,' reliance having been placed upon the Appellate Division decision in Codling v. Paglia, 38 A.D.2d 154, at page 161, 327 N.Y.S.2d 978, at page 985, where the court said, that 'contributory negligence is not a defense to an action for breach of implied warranty.' It was pointed out that while said motion was being considered the Court of Appeals ruled in Codling on May 3, 1973 that contributory negligence would be a defense in cases of strict products liability (32 N.Y.2d 330, 343, 345 N.Y.S.2d 461, 470, 298 N.E.2d 622, 629). Thereafter, defendant moved for reargument and for judgment on the issue of warranty as a matter of law. In an opinion dated September 21, 1973, said Justice decided to set aside the entire verdict and direct a new trial on all questions in the interest of justice, it being regarded as possible that the charge was confusing to the jury since it was delivered before the Court of Appeals' decision in Codling. It was also declared that under the standards of said decision plaintiff's complaint would have to be dismissed but that, in the context of this case, plaintiff's actions might not be regarded as constituting contributory negligence as a matter of law since a subordinate workman has little, if any, choice in obeying a superior's instructions.

Defendant appealed and the Appellate Division, Second Department, in reversing, on the law and relying, Inter alia, on Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802, Supra, reinstated the jury verdict on the negligence cause of action and directed a judgment for defendant on the cause asserting a breach of warranty. It found that the danger of being caught in the machine was well known in the trade and, more importantly, the plaintiff had actual knowledge of the possible consequences in 'chasing a hickie'.

CPLR 4404 (subd. (a)) authorizes the court, either by motion of any party, or on its own initiative, to order a new trial 'in the interest of justice'. It is predicated on the assumption that the Judge who presides at trial is in the best position to evaluate errors therein (4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 4404.01). The Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected (Matter of De Lano, 34 A.D.2d 1031, 1032, 311 N.Y.S.2d 134, affd. 28 N.Y.2d 587, 319 N.Y.S.2d 587, 268 N.E.2d 642) and 'must look to his own common sense, experience and sense of fairness rather than to precedents in arriving at a decision' (4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 4404.11). This power conferred upon a court to order a new trial is discretionary in nature (Mercado v. City of New York, 25 A.D.2d 75, 77, 265 N.Y.S.2d 834, 836; see McCarthy v. Port of N.Y. Auth., 21 A.D.2d 125, 248 N.Y.S.2d 713). Although matters of discretion are reviewable by the Appellate Division (O'Connor v. Papertsia 309 N.Y. 465, 471, 131 N.E.2d 883, 886; see CPLR 5501, subd. (c)), the Appellate Division here did not see fit to interfere with the exercise of the trial court's discretion or otherwise pass upon it.

There were errors. At the outset of the charge, the court stated: 'I charge you that the plaintiff knew of the risk and assumed it' and, without explaining the matter further, digressed into another subject. Plaintiff took an exception. Such an instruction was erroneous in that assumption of risk is an affirmative defense (see CPLR 1412; Siegel, Supplementary Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3018, 1975--1976 Supp., p. 8; see, also, McInnis v. Fireman's Fund Ins. Co., 322 So.2d 155 (La.); Smith v Dhy-Dyamic Co., 31 Cal.App.3d 852, 107 Cal.Rptr. 907) which, as here, is waived if not specifically pleaded (CPLR 3018). The court also stated that, if the contributory negligence of plaintiff was a 'factor' to the happening of the event, there could be no recovery--as opposed to a 'substantial factor' as required under Codling v. Paglia, 32 N.Y.2d 330, 342, 345 N.Y.S.2d 461, 470, 298 N.E.2d 622, 629, Supra. It is noted, however, that no exception was taken as to this item. The jury was also charged that contributory negligence would not provide a defense to the warranty cause, a statement thereafter cast in doubt by this court in Codling. Under these circumstances, there should be a reversal of the Appellate Division order and a new trial on all issues.

We are confronted here with the question as to the continued validity of the patent-danger doctrine of Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802, Supra. Plaintiff sought damages by alleging two causes of action, one couched in negligence in the design of the machinery and the other premised upon the breach of an implied warranty. Since the time of trial, a third independent cause of action, one in strict products liability, has been recognized by this court (Velez v. Craine & Clark Lbr. Corp., 33 N.Y.2d 117, 350 N.Y.S.2d 617, 305 N.E.2d 750; Codling v. Paglia, supra). The claims constitute separate theories of recovery and the decisions both in this State (e.g., Velez v. Craine & Clark Lbr. Corp., supra; Rainbow v. Elia Bldg. Co., 49 A.D.2d 250, 373 N.Y.S.2d 928; Jerry v. Borden Co., 45 A.D.2d 344, 358 N.Y.S.2d 426) and beyond (e.g., Pike v. Hough Co., 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229; Palmer v. Massey-Ferguson, 3 Wash.App. 508, 476 P.2d 713; Ann., 52 A.L.R.3d 101) have adhered to the distinction (Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395, 373 N.Y.S.2d 39, 335 N.E.2d 275).

Directing our attention to the cause of action for negligence in design, defendant asserts, citing Campo v. Scofield (sup that the action must be dismissed because the danger created by the absence of safeguards on the machine was open and obvious and, therefore, as the manufacturer it was under no duty to protect plaintiff from such a patent defect. Campo...