Stevens v. Kanematsu-Gosho Co., Inc.

• Decision Date: 29 March 1974
• Docket Number: No. 73-1241.,73-1241.
• Citation: 494 F.2d 367
• Parties: Fred I. STEVENS and Betty Stevens, Appellees, v. KANEMATSU-GOSHO CO., INC., and Boston Machinery, Inc., Appellants.
• Court: U.S. Court of Appeals — First Circuit

494 F.2d 367 (1974)

Fred I. STEVENS and Betty Stevens, Appellees, v. KANEMATSU-GOSHO CO., INC., and Boston Machinery, Inc., Appellants.

No. 73-1241.

United States Court of Appeals, First Circuit.

Argued October 3, 1973.

Decided March 29, 1974.

Stanley J. Mullaney, Dover, N.H., with whom Calderwood & Ouellette Prof. Assn., Dover, N.H., was on brief, for appellants.

Duncan A. McEachern, Portsmouth, N.H., with whom Shaines, Madigan & McEachern, P. A., Portsmouth, N.H., was on brief, for appellees.

Before COFFIN, Chief Judge, MOORE,^* and McENTEE, Circuit Judges.

MOORE, Circuit Judge.

These consolidated actions arise out of an industrial accident which occurred on August 3, 1969, on the premises of Janco Sales, Inc. in Rollinsford, New Hampshire, when the hands and fingers of Mr. Fred I. Stevens (Stevens) were crushed while he was setting a die in an Aida Hy-Flex press.

The press in question is a 110 ton mechanical punch press manufactured by Aida Ironworks, Ltd. (Aida), a Japanese corporation. The Kanematsu-Gosho Co., Inc. (K-G), a Japanese corporation doing business in the United States, had purchased the press from Aida, imported it into this country and sold it to Boston Machinery, Inc. for further distribution. Janco Sales, Inc. purchased it from Boston Machinery, Inc. for use in its Rollinsford plant.

Because diversity of citizenship existed and the amount in controversy exceeded $10,000, Stevens brought actions in the United States District Court for the District of New Hampshire against Boston Machinery, Inc. (Boston), K-G and Aida on four theories: (1) negligent design; (2) strict liability; (3) implied warranty; and (4) warranty of fitness under New Hampshire statutes. By final pretrial order, the issues were reduced to strict liability and negligence.¹ At the opening of the trial, plaintiff dropped his claim of negligence. Mrs. Stevens brought loss of consortium actions against the same parties. The cases of Fred Stevens and Betty Stevens against Boston and K-G, Civil Action Nos. 3341, 3343, 3345 and 3346, resulted in a verdict in favor of plaintiff Stevens against both defendants in the amount of $90,000 and a verdict for plaintiff Betty Stevens against defendants K-G and Boston in the amount of $7,500.² During the trial the Court ruled that contributory negligence on the part of Stevens would not be a bar to his recovery in this case and so instructed the jury. In addition, at the close of all the evidence, the defendant, K-G, moved to strike the evidence provided by Mr. William J. Roy, an economist who had testified with regard to Stevens' prospective future earnings. This motion was denied. The defendant K-G, on behalf of both Boston and itself, subsequently filed a motion for judgment notwithstanding the verdict which was denied by the Court and judgment was entered for both plaintiffs pursuant thereto from which the defendants appeal.

Because in our opinion the issue of Stevens' assumption of the risk and/or his contributory negligence were matters which should have been presented to the jury, we reverse the judgment against defendants and remand for a new trial.

The machine which lies at the center of this dispute is a mechanical punch press used in various die or punching operations to cut and form metal parts. When activated and set in motion, the machine has a ram which descends forcibly upon a piece of metal which has been placed on a die. Once it stamps the piece of metal, the ram will ascend to its original position so that it will be ready to repeat the operation. In this case the press was being prepared to produce armrests for the Ford Maverick automobile.

The machine has two separate control systems which are operated in conjunction with one another. These enable the operator to choose independently the means by which the power is to be activated in the machine, and the duration of the machine's operation once the power is activated. The power selector switch may be set in a "single button" position so that the depression of a single button will activate the machine. It is also possible to set the selector to a "dual button" setting so that two buttons on the panel must be simultaneously depressed in order to activate the machine. Finally, a portable foot switch can be connected to the machine by means of a plug. When the power selector is set to operate on "foot pedal", the power is activated when the operator steps on this pedal.

By setting a control selector switch to the desired response position, any of these activating methods can be used to obtain the four following responses from the machine when the power is activated. The first setting is "off" or no response at all.³ The second setting is "inch". When this setting is used in conjunction with any of the power selector settings, the ram on the machine will move through its cycle only so long as the operator continues to apply power by holding down either the single button, the dual button, or the foot pedal. The next available setting is "once". With this setting any of the three means of activation, when depressed, will cause the machine to run through a complete cycle, i. e., the ram on the machine will go down and back, thus completing its stroke. The final setting is "continuous", which means that a single depression of any of the activation systems will cause the machine to operate continuously at the rate of fifty strokes per minute.

Fred Stevens had begun his career in the area of machine operation and tool and die making in 1941 and was generally considered "an all-around machinist." In September, 1968, he began to work for Janco Sales as a tool and die maker. He had developed several dies for use in the Aida Hy-Flex press and, in his opinion, was thoroughly familiar with its operation and the operation of the press' various safety features. In fact, at one point during the trial, the Court ruled that Stevens could give opinion testimony regarding the machine shop operation and the design features of the Aida press since, based on his experience, he qualified as an expert and, thus, could give opinion testimony. Stevens himself stated that he was fully aware of the various machine setting alternatives.

The accident happened on a Sunday afternoon at around 6:00 p. m. Stevens had been working for several months to perfect a die that was to be placed in the press so that production could proceed on the automobile armrests. He had worked since 7:00 a. m. on the day of the accident with only a brief coffee break in the morning and a one-half hour lunch break at noon. Other employees were in the area at the time actually waiting to go into production if Stevens could complete a proper installation and set up of the die. At the time of the accident, the motor was running and the fly wheel was turning.

Because a technical problem caused the machine to spray oil on the operator whenever either of the hand switches were used, the portable foot pedal was plugged into the machine and the power selector switch was on "foot pedal". And since Stevens had been testing the die by stamping out parts, he purposely turned the control selector switch from "inch", where it had been, to "once", so that any depression of the foot pedal would result in the ram going through a complete stroke whether the operator removed his foot from the pedal or not.

During the course of his work, Stevens found it necessary to make some fine adjustments in the die. While the machine was in its "live" condition, he started to make these adjustments. He did not change the control selector switch setting nor did he change the power selector or turn the machine off. He merely pushed the foot pedal to his right so that he would not accidentally step on it while his hands were vulnerable. At that time a foreman Mr. Paul Picard, was in the machine shop area of the Janco Plant. As he approached the press, he noticed that Stevens was making an adjustment to the die. He apparently was not cognizant of the position of the foot pedal. As he reached the machine his foot accidentally activated the pedal, causing the ram to come down upon Stevens' fingers and hands.

All issues have been removed from this case except that of strict liability. The principle of strict products liability is set forth in Section 402A of the Restatement of Torts, as follows:

One who sells any product in a defective condition unreasonably dangerous to the user or the consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer or to his property.

In conformity with this theory of strict liability, plaintiff claimed that the Aida press was designed in such a manner that the machine was unreasonably dangerous when used in a normal and foreseeable manner. Specifically, he alleged that the foot switch supplied with this particular press is defectively designed because it is not enclosed on the sides. Such enclosure, according to plaintiff, would prevent activation of the machine by the foot switch except by frontal insertion of the toe of the operator onto the pedal. Likewise, plaintiff claimed that the machine's control circuitry was defectively designed because it permits the operator to set the control on "once" when he employs foot pedal activation.

On the other hand, defendants argued that their machine was not defectively designed, that it incorporated ample safety features in its design, and that the mere fact that an accident occurred while someone was operating the machine does not make them liable under any theory of liability, even a theory of strict liability. They submitted that the accident was caused, not by defective design, but rather by the fact that the injured plaintiff had knowingly encountered a known risk when he attempted to make adjustments while the machine was in a "live" and, therefore, dangerous condition; that he had ample opportunity to protect himself by utilizing one or more of the press'...