Appeal from the Circuit Court of Cook County; the Hon. DANIEL
A. ROBERTS, Judge, presiding. Affirmed.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 8, 1966.
This is an appeal from a jury verdict and judgment against Federal Press Company *fn1 for $255,000 as damages for personal injuries sustained by plaintiff while working as a punch press operator for Central Die Casting Company.
Defendant manufactured and delivered to Central Die Casting Company, on December 27, 1956, a one-hundred ton punch press, completely wired and assembled, to be used to stamp metal television frames. The press was installed for operation sometime in January 1957, by employees of Central. The press operated without incident for almost five years, except for a fire in the electrical control box in 1961, which is without significance in this case.
Plaintiff was employed as a punch press operator for Central and had operated the press in question on various occasions over a period of approximately four years up to the time of the accident. On October 3, 1961, after performing his work as usual for approximately two hours that morning, plaintiff left the press for a coffee break while a substitute continued its operation. Plaintiff returned ten minutes later and proceeded to punch out three television frames. He placed the fourth frame on the punch press, hit the motivating buttons and the ram of the press came down and went up. Plaintiff reached into the bed of the press in customary fashion to remove the stamped frame from the die, when the ram came down again, and then kept going up and down continuously. Woodson, a fellow employee working next to plaintiff, ran to the press and turned the switch, halting the continuous operation of the ram. Both arms of plaintiff had been severed below the elbows.
Analysis of the operation and composition of the selector switch block on the press in question is a prerequisite to determination of the merits of this case. The operation of the selector switch is controlled by a knob on the front of the block, which may be turned right or left (either clockwise or counterclockwise) from one to another of three different positions. The knob actuates a cam which in turn causes a simple metal crossbar to move either right or left, depending on which way it is turned. The cam is basically a circular piece of plastic with inclined planes across its surface. These inclined planes allow the crossbar to move to different positions of rest on the cam. Each position on the cam represents a different operation of the press. There is a name plate, or dial, attached to the outside of the selector switch which has three words on it signifying the three different operations: "once," "inch" and "continuous." When functioning properly, with the selector switch at the "once" position, the ram would move in a single down-and-up stroke and stop; at the center "inch" position the ram would move only so long as the operator would hold down both of two control buttons, and would stop on release of either; at the "continuous" position the ram would move down and up continuously.
Over objection by defendant, a photocopy of a wiring diagram or blueprint, the original of which was delivered by defendant with the machine, and subsequently destroyed, was admitted in evidence as a plaintiff's exhibit. The wiring of the switch determines the operation of the machine, and if the switch were properly wired in accordance with the diagram, the dial of the switch would correctly register the operation in which the press was engaged. (For present purposes it is assumed that the switch was not wired for the inch operation at all.) When the selector switch, the diagram, and the experts' testimony are analyzed it appears that tabs 1 and 24 were to be wired to the front terminals, while tabs 1 and 25 were to be wired to the rear terminals. Under this wiring arrangement, when the electrical connection was made to the rear terminals, a continuous operation would result. At such a time the crossbar would be at the highest position on the cam. If, for any reason, the crossbar were to slip from this position, a spring load device would cause the crossbar to fall to the lowest position on the cam, a once operation would result, and the machine would stop. This was a safety feature of the control, because under such an arrangement any slipping from position by the crossbar would have been to the once position. Obviously, an operator standing clear of the machine for an expected continuous operation would not be injured by an unexpected stopping of the ram. If the wiring were correctly done in accordance with the diagram, the once operation would have occurred when the crossbar was in the lowest position on the cam and any slipping of the bar while in that position would therefore have had no effect on the operation of the machine; by slipping from the once position the crossbar could not have engaged the continuous operation, because to do so would require it to move upward to the highest position on the cam, which it could not do against the force of gravity and against the opposite pressure of the spring.
The gist of defendant's negligence, as alleged by plaintiff, is the faulty wiring of one of the selector switch blocks. Specifically, it is claimed that tabs 1 and 24 (the once cycle) were incorrectly wired to the rear terminals instead of the forward terminals, and tabs 1 and 25 (the continuous cycle) were incorrectly wired to the forward terminals. This meant that when the control knob pointed clockwise to "continuous" the machine operated in the "once" cycle, and vice versa. The net result of such "reversed" wiring was to remove the safety feature otherwise present if wired according to defendant's diagram. Under proper wiring, a slight release of the switch block spring pressure could only cause the electrical connection to produce a once operation and stop the machine, whereas, under the alleged miswiring, if the spring pressure were released, the press would cycle continuously. Moreover, such "reverse" wiring allegedly caused extensive spring tension in the switch block through customary use in the once operation and made it inherently and potentially dangerous to an operator of the press. Such wiring allegedly made it inevitable, after an extended period of operation, that the cam would become worn and, by slippage of the crossbar, would cause a sudden and unexpected change in the operation from the once cycle to the continuous cycle. As a further argument pointing toward defendant's negligence, plaintiff contends that proper wiring of the inch position on the selector switch (which, it is agreed, was omitted entirely from the switch in question) would have served as an additional safety factor since, even under "reversed" wiring of the once and continuous operations, release of the spring pressure would have resulted in the movement of the crossbar only so far as the middle or inch position on the cam, a position of safety.
Defendant contests the issue of liability only. It contends that plaintiff failed to prove his case, and that defendant's motions for directed verdict and for judgment notwithstanding the verdict should have been allowed. Alternatively, defendant claims that the verdict was contrary to the manifest weight of the evidence and that there were trial errors requiring a new trial.
Four witnesses employed by Central testified on behalf of plaintiff concerning the press: Woodson, Rudle, Cesky and the plaintiff himself.
He started working for Central in 1955 as a punch press operator. When he operated the press in question he would put the television frames in the die, take a hose and blow clean the top of the die and oil it, set the frame on the die, and then, using both hands, press both of the activating buttons at one time to cause the ram to come down. If he took either hand off one of the buttons the ram would not move. On the day of the accident, the pointer on the dial of the switch was pointed to the right, as it had been at all times when he operated the press in question. He never saw the pointer in any other position. Immediately before the accident he pressed the two buttons and the ram came down and went back up and stayed. He reached in with both hands to take the television frame off the die and put it on the inspector's table. This required him to put both hands and arms inside the die. He thought he had the frame in his hands until he looked down and saw that his arms were cut off. He then realized that the ram was going up and down continuously.
(On cross-examination) During all his previous work on the press it had operated properly, and to his knowledge it was the best press in the plant, although he was not a technician and had nothing to do with repairs.
(A significant point in plaintiff's testimony is that at the time of the accident the switch was pointed to the right in the position which indicated "continuous" but which, according to plaintiff and others, had always produced a "once" cycle operation. It is undisputed that another employee stopped the action of the ram by turning the switch, and when the switch was removed from the press it was pointed to the right. The inescapable inference is that the sudden change in operation of the ram was caused by a movement of the switch from right to left. The parties differ, however, in their theories as to how this came about.)
Testimony of Oscar Woodson
At the time of the accident he was employed by Central as a die caster and was molding television frames. He was working at the punch press next to plaintiff. Upon his return from the 10:00 a.m. coffee break, he heard plaintiff cry out, whereupon he stood up and saw the ram of the press going up and down. Plaintiff was swinging his arms which were "hanging by the skins." Woodson turned the press off by turning the switch, although he didn't know which way he turned it. He was not employed by Central at the time the press was delivered to the plant by defendant. Woodson had operated the press in question when the regular operators were not there. On those occasions the press had operated all right.
He worked for Central for twenty-nine years as a punch press operator. When the press in question was delivered by defendant, he helped Paul Michelek, the die setup foreman, set a die in the press. (Michelek was not living at the time of trial.) Rudle's testimony was somewhat confused as to the date when the die was set. On direct examination he testified that it was set in January of 1957, while on cross-examination he indicated that the date was December of 1957. Since the record indicates that the press was delivered to Central in December 1956, it would appear that the December 1957 date was in error. In any event, we do not consider the discrepancy to be of any consequence. There seems to be no question but that Rudle helped set the first die in the press.
Rudle further testified that, with the dial of the selector switch set at inch, the press would not operate; the ram would not move down. With the dial of the selector switch set to the extreme right at continuous, the press did not operate continuously but instead the ram performed the once operation, moving down and up only once before stopping. When he turned the selector switch so that the dial showed once, the press performed a continuous operation. After this initial test and at all times when he operated the press, he never had occasion to require a continuous operation; he thereafter never touched the switch.
Testimony of Rudolph Cesky
Cesky was the maintenance foreman employed by Central at the time of the accident. He helped install the press early in January 1957, at which time there was no die set in it. He first put an electrical line into the press to energize the box and motor. He alone performed all electrical work on the press from its delivery through the date of the injury to plaintiff. On direct examination Cesky testified that upon delivery of the press, he inspected it simply by starting and stopping the motor to see that it ran in the right direction. He and Michelek ran the press down and up only once. He never changed the selector switch on the press in question after its delivery. The selector switch, introduced in evidence as a plaintiff's exhibit, was the same switch that was taken off the press after the accident. He didn't know whether the inch position on the selector switch was "hooked up." On further direct questioning, however, he stated that the wires were there but it was not hooked up in the switch and the machine did not work in inch position.
On cross-examination Cesky said that it was his job to install the press and determine whether it was in operating condition. At installation all he did was to get power into the machine to see if it ran the right way. The selector switch was set at the once phase and he did not change it, operating the machine through only one cycle down and up. He made no other tests, and did not try the press on the inch setting. Confronted with his pretrial deposition, Cesky then testified that he had tested the press on both the once and the inch settings, but not when set at continuous. He believed at that time that the press was operating properly. Again, after a short in the transformer in May of 1961, he tested the control switch on inch and ...