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Eizerman v. Behn

FEBRUARY 21, 1956.

DANIEL EIZERMAN, APPELLEE,

v.

ABE BEHN, MILTON BEHN, AND ROBERT BEHN, INDIVIDUALLY AND AS PARTNERS DOING BUSINESS AS CHICAGO USED AND NEW LAUNDRY EQUIPMENT COMPANY, APPELLANTS.



Appeal from the Superior Court of Cook county; the Hon. CHARLES E. BYRNE, Judge, presiding. Affirmed.

PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

This is an appeal by the defendants from a judgment entered in the Superior Court of Cook County for the plaintiff in the sum of $70,000. The action was brought by plaintiff to recover damages for personal injuries, and was tried before a jury. Motions for judgment notwithstanding the verdict and for new trial were denied by the trial court.

The defendants contend that the court erred in denying their motion made at the close of all the evidence for a directed verdict and in not entering judgment in their favor notwithstanding the verdict; that the verdict is against the manifest weight of the evidence; that the trial court erred in its rulings on the admission of evidence and in its failure to sustain various motions of the defendants for a mistrial, and that the defendants were denied a fair trial due to the conduct of counsel for the plaintiff.

The case grew out of an occurrence at the place of business of the defendants, who were engaged in the business of buying, selling, repairing and reconditioning secondhand commercial laundry equipment, as well as selling new laundry machinery. The plaintiff, together with a partner, was engaged in the laundry business, and on the day of the accident was at the defendants' place of business inspecting a used washing machine, the purchase of which he and his partner were considering.

Numerous photographs as well as oral testimony in the record describe the washing machine in question. It was, as appears from the evidence, a three-door, all metal machine weighing approximately three tons. Its outer metal cylinder was designated as the "shell," and was equipped with three sliding doors. This outer shell is stationary. Inside the outer shell is an inner cylinder which rotates. Between this cylinder and the outer shell there is only about an inch or two of space. The machine is equipped with a purely mechanical, manual brake.

If the machine was connected and wired according to the original design, the current would pass from a wall switch to a magneto box on the back of the machine. From the magneto box the current would be carried to a control box located on the extreme right of the washing machine, and from there it would then pass through a conduit to a motor located on the top of the machine.

In order to start the machine when so connected, if the machine was in good condition, the doors of the shell must be closed in order to complete the electrical circuit through the control box. The doors are equipped with a "locking bar" so that the door to the extreme left must be closed before the center door can be closed, and the center door must be closed before the door to the extreme right can be closed. On the extreme right of the right shell door and near its top is a finger-like "cam." This cam operates in connection with a hollow peg-like structure or casting which projects from the left face of the control box. A button protrudes from the end of this peg or casting and is held in its protruding position by a spring in the center of the hollow peg. The hollow peg and button are designated as the "door switch." When the right door of the shell is closed, the cam on the door presses against and holds the door switch button in, and thus completes one of the circuits through the control box.

Attached to the manual hand brake by means of a metal spoke is a semi-circular, eccentric moon-shaped metal casting called the "brake cam." On the right face of the control box is a hollow finger-like metal tube extending outward. This hollow tube is equipped with a button supported by a spring. When the hand brake is in a "down" position, this button is depressed by the eccentric moon-shaped casting of the hand brake and the circuit is opened. When the brake is moved upwards and in a "released" position, the moon-shaped cam releases the button and a second circuit is completed within the control box.

The third circuit which is necessary to complete in order to start the machine is designated as the "starter," "manual," and "inching switch." It is a button on the left face of the control box, which is held in an outward position by a spring within the control box. The switch is operated manually, and the switch button must be pushed and held in place before the cylinders can be turned by electric power. Once the machine is started it is no longer necessary to hold this button depressed.

In order that articles to be laundered may be put into, or removed from, the compartments of the cylinder, the apertures of the shell and the cylinder must coincide. This is accomplished by slowly moving or "inching" the inner cylinder by electric power or by hand. If the machine was connected in the way described, it could only be done electrically when the shell doors were opened by placing and holding both the button of the door switch and the "inching" button in the "in" position, and at the same time compressing the two levers of the brake, by the manipulation of which the apertures of the shell and cylinder may be brought into apposition. Such procedure is called "spotting the cylinder." The inner cylinder may also be "inched" by hand.

The plaintiff's theory of the accident is that at the time of the injury there was no magneto box on the machine and the motor of the machine was connected by a cable directly to the electrical inlet of the defendants and was started by pulling a wall switch located some distance from the machine. If the machine was so connected, turning on the electrical power would immediately cause the cylinder to rotate.

The defendants' theory is that at the time when the machine was received by them there was no magneto control box attached to it and that they had at some time prior to the occurrence attached such a box, and wired the control box so that the rotation of the cylinder was started or stopped by engaging or releasing the brake, which was operated by moving the manual brake handle up or down.

On the day of the occurrence the plaintiff, together with his partner, was being shown the machine by the defendants, and plaintiff's testimony was that the hand brake was loosened and they pushed the cylinder around by hand; that the defendants then attached an electric cable directly to the motor of the machine, took it to the back of the shop and the machine was started; that after it had run for a short period defendant Abe Behn told one of his employees to go back and pull the switch, which he did, and the machine then stopped; that the plaintiff had put his hand into the machine to feel for loose rivets and that while he was so engaged someone pulled the switch in the rear of the shop and the cylinder started rotating and crushed his arm. The defendant Abe Behn called "pull the switch." The switch was pulled and the machine was stopped, and wrenches were used to remove plaintiff's arm from the machine.

The testimony of the defendants' witnesses is to the effect that the electric cable was connected to the machine through the magneto control box before the plaintiff came to the defendants' place of business; that when the machine was so connected the electrical contact which would start the machine could be made with the brake handle; that the machine, while the defendants were there, was so started, and that after it was stopped the plaintiff reached into the machine with his right hand looking for loose rivets and at that time, with his arm in the machine, he reached up with his left hand and moved the brake handle, starting the machine which caught his arm between the shell and cylinder of the machine.

There is evidence in the record that the plaintiff was right-handed. The plaintiff introduced evidence that the button which should have protruded out of the hollow tube of the door switch was compressed and held back by corrosion so that it was inoperative; that the spring which held out the button of the starting switch was broken and the button was either missing or had dropped back so that it could not perform any function, and that therefore the machine would be started with the doors open and by one-handed operation. On the other hand, testimony on behalf of the defendants was that these buttons would not at any time, even when the machine was new, affect the use of the brake handle alone in starting or stopping the machine.

The evidence with respect to the occurrence of the accident is sharply conflicting and cannot be reconciled.

The defendants urge that there was a variance between the allegations of the plaintiff's complaint ...


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