Stillwell v. Cincinnati Inc.

• Decision Date: 14 July 1983
• Docket Number: No. 10282,10282
• Parties: Kim STILLWELL, Plaintiff and Appellant, v. CINCINNATI INCORPORATED, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 618

336 N.W.2d 618

Kim STILLWELL, Plaintiff and Appellant, v. CINCINNATI INCORPORATED, Defendant and Appellee.

Civ. No. 10282.

Supreme Court of North Dakota.

July 14, 1983.

Dosland, Dosland & Nordhougen, Moorhead, Minn., for plaintiff and appellant; argued by Duane Lillehaug, Moorhead, Minn.

Lundberg, Conmy, Nodland, Lucas & Schulz, Bismarck, for defendant and appellee; argued by Patrick A. Conmy, Bismarck.

SAND, Justice.

The plaintiff, Kim Stillwell (Stillwell), appealed from a district court judgment dismissing with prejudice her personal injury action against the defendant, Cincinnati Incorporated (Cincinnati), in which she sought to recover damages for the loss of four fingers on her right hand, based upon the theories of strict liability in tort and negligence.

On 16 July 1979 four fingers on Stillwell's right hand were accidently severed by the "press brake" she was operating. The "press brake" was manufactured by Cincinnati and being used in the manufacturing process of her employer, Clark Equipment Co. (Clark), of Gwinner, North Dakota. A press brake is an industrial machine used to bend and shape metal by the application of force through a descending ram to a fixed bed. Tools and dies are inserted on the bed and lower edge of the ram to bend and shape the metal into the desired configuration. The "point of operation" of a press brake is the area of impact where the dies descend onto the metal with the force of the descending ram providing the shape to the metal inserted in the bed.

The press brake involved in the instant action was a general purpose press brake manufactured by Cincinnati in 1958 in response to an order by Clark. The press brake, as originally manufactured, was operated by the use of a mechanical clutch foot pedal to cause the ram to descend. The mechanical foot pedal required the operator to lift his or her foot nine to ten inches above the floor and apply approximately fifty pounds of pressure to depress the pedal fully to cause the ram to descend.

In approximately 1975 or 1976 the press brake was modified to provide two separate methods of causing the ram to descend, a foot switch and a two-hand palm button. Clark replaced the mechanical clutch foot pedal with an air electric clutch and foot switch which required only two pounds of pressure to operate the pedal, but was enclosed in a metal box which had a trapdoor across the front of the box requiring the operator to lift the trap door with his or her toe before the switch was accessible.

The two-hand palm button was an alternative method of operating the press brake and required the operator to use both hands to press separate buttons to operate the machine. The press brake stopped instantly if either hand was removed from one of the separate buttons.

The press brake was equipped with a key selector switch by which the owner could determine whether to use the electric foot switch control or the two-hand palm button control system. The electric foot switch and the two-hand palm button controls were essentially safety devices to allow operation of the press brake and at the same time prevent the ram from descending on the operator's hands.

Additionally, Clark had purchased another safety system for the press brake, an electric eye unit which would stop the ram at any point in its downward descent if anything broke the light beam in the point of operation. However, this safety system had not been installed by Clark.

On the day of her injury, Stillwell was operating the press brake to flatten strips of metal. Her foreman had selected the Stillwell commenced an action against Cincinnati ¹ alleging, in substance, that her injuries were the direct and proximate result of Cincinnati's negligent design, manufacture, distribution and servicing of the press brake; that the press brake was in a defective condition and unreasonably dangerous; ² and that Cincinnati failed to give adequate and proper directions for use and warnings about the risks connected with the use of the press brake.

foot control method of operation for the press brake rather than the two-hand palm control method. The particular foot control on this press brake did not have the trapdoor cover which ordinarily had to be lifted before the switch could be activated. Thus the foot control was easily accessible without the normal safety precautions. Prior to the accident her foreman admonished her for not being more productive. Stillwell inadvertently tripped the foot switch while her hand was adjusting the metal part and, as a result, the ram descended on her right hand and severed four of her fingers.

After a bench trial, the court entered judgment dismissing with prejudice Stillwell's complaint, and she appealed.

The first issue raised by Stillwell is that the trial court's finding that Stillwell's expert (Gerald Rennell) was not qualified to give opinion testimony as an expert witness was clearly erroneous and impermissibly tainted the court's view of the theories of recovery raised by her. In conjunction with this issue, Stillwell contended that the trial court's findings that the press brake did not have a design defect was clearly erroneous and the court erred by not finding that Cincinnati failed to adequately warn her of the danger inherent in the operation of the press brake. For purposes of discussion we will initially consider the trial court's finding that Rennell was not qualified to give opinion testimony as an expert witness.

Stillwell contended the trial court excluded Rennell's testimony from its consideration of her case because it erroneously found that Rennell was not qualified as an expert ³ and erroneously failed to take into account the factual basis supporting Rennell's claim to be an expert witness.

Rennell's deposition was read into evidence at trial, and his testimony essentially established his opinion as to various safety devices for press brakes. Rennell's testimony, in substance, suggested an interlocking "stroke-stop" safeguarding system which would have required either the two-hand palm control button or a "stroke-stop" method of operation using a foot control. A key interlocking device would then prevent the machine from being operated with anything but the "stroke-stop" method of dropping the ram whenever the foot option was used to run the machine. As described by Rennell, the press brake could be operated by dropping the ram to a quarter inch of The record reflects that Rennell's entire testimony, opinions and suggestions for safety devices for press brakes were admitted into evidence. Thus the precise issue presented by Stillwell does not deal with the admissibility of expert testimony, but rather with the weight and credibility to be attached to the expert's testimony.

the metal in the bed with the palm control button and then positioning the metal and finishing the job with the foot control. According to Rennell, there would be no danger that the operator could have her hand in the point of operation because the size of the opening was reduced to such a degree that the hand would not fit in the opening.

A vast difference exists between qualifications of an expert (i.e., whether or not a witness' knowledge, skill, experience, training, or education will assist the trier of fact to understand the evidence) which bears on the admissibility of the expert opinion, and the ultimate weight and credibility attributable to the testimony.

The trier of fact need not accept testimony and the opinion of an expert, even if the testimony is undisputed. Cook v. Jacklitch & Sons, Inc., 315 N.W.2d 660 (N.D.1981); State v. Collins, 261 N.W.2d 878 (N.D.1977); Waletzko v. Herdegen, 226 N.W.2d 648 (N.D.1975). For example, a jury need not accept the opinion of an expert, but it may give the expert's opinion such weight as is reasonable in light of the factual circumstances. North Dakota Jury Instruction 1002. See also, 88 C.J.S. Trial Sec. 203, p. 403, 408. The weight and credibility attributable to an expert's testimony and opinion is essentially a factual question for the trier of fact and the "clearly erroneous" standard of Rule 52(a), North Dakota Rules of Civil Procedure, applies.

The trial court found:

"41.

"The 'Rennel[l] interlock control system' is inappropriate as:

(a) The 1958 model machine was manufactured with mechanical controls--a foot pedal only--and electrical controls could not be fitted until the machine was converted to the air electric clutch in 1975 or 1976.

(b) A large number of usual press brake operations could not be performed using the Rennel[l] system.

(c) The Rennel[l] system would require the 'stroke stop' to be adjusted for each change in tooling and thickness of material being formed--with the probable result that the interlock would be permanently bypassed by setting the 'change over' at the top of the stroke--rather than just above the work piece."

We believe these findings of fact reflect that the trial court did consider the opinion and testimony of Rennell; however, the trial court found that the Rennell interlock control system was "inappropriate" because of the wide range of uses for the press brake which could not be performed using the Rennell system and because the interlock could be bypassed by changing the method of operating the ram at the top of the stroke rather than just above the piece of metal.

Although the particular wording of the finding of fact challenged by Stillwell may have been incorrect and misleading by itself, nevertheless the remaining findings reflect that the trial court did consider Rennell's testimony. Furthermore, we cannot totally ignore the circumstances leading up to the drafting of the findings of fact (see footnote 3) and the trial court's memorandum opinion. We conclude that the trial court did consider Rennell's testimony and opinion.

Having concluded that the trial court considered Rennell's testimony, we must next resolve whether or not the...