APPEAL from the Circuit Court of Cook County; the Hon. P.A.
SORRENTINO, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 5, 1973.
Abdon Rios (plaintiff) brought suit for personal injuries against Niagara Machine & Tool Works (defendant) on a strict tort liability theory. Plaintiff was injured while operating a punch press manufactured by defendant and sold to Hammond Organ Company where plaintiff was employed. A jury returned a verdict in plaintiff's favor and defendant appeals. No point is raised on the amount of the verdict.
Defendant urges that plaintiff has failed to prove the necessary elements for imposition of strict tort liability as regards the defective condition of the machine when sold and also that the sole proximate cause of plaintiff's injury was an allegedly defective safety device which had been affixed to the machine by plaintiff's employer. Defendant also urges that the press had been materially changed subsequent to its sale. In response, plaintiff contends that it was defendant's duty to manufacture and sell a press that was reasonably safe and not unreasonably dangerous; this duty had been breached by defendant and the unreasonably dangerous condition existed when the press left defendant's control; defendant's duty to produce a reasonably safe punch press could not be delegated to plaintiff's employer and the proximate cause of plaintiff's injury was a condition of the product.
The machine here involved is commonly referred to as a punch press. It is capable of supplying a pressure equivalent to 45 tons. It has an open back which permits the operator to feed it from the back or the sides as well as from the front, depending on the type of process required. It is described as inclinable because it can be tilted toward the rear or front for performance of certain operations. This press was manufactured by defendant sometime during 1956 and was sold to Hammond during that same year. The press was sold and delivered to Hammond without certain parts which were necessary for its operation. The movable part of the press, which descends forcefully during its operation, is called a ram. The table or bottom portion to which the ram descends is an anvil. A die set must be fitted to the ram. The type of die required by the purchaser is then fitted within the die set. A die set is also attached to a bolster which is on the anvil or lower part and a corresponding die is inserted into the lower die set.
When thus equipped, this press may be used in a primary or a secondary type of operation. In the primary phrase, raw material is fed into the press and partly fabricated or, in effect, reduced to the desired size of workable parts. In this type of operation, the machine is used automatically. The only function of the operator is to make certain that an adequate supply of raw material is at hand. This type of operation is referred to as primary or automatic.
In the secondary operation, the blank parts previously prepared by the machine are finished by perforation or other process. In this operation the machine must be hand fed by an operator. He must set the part within the pinch area on the lower die so that it will be properly fabricated by descent of the upper die in the die set affixed to the ram. After setting the part, the operator activates the machine by a foot pedal and the ram descends. It lifts automatically and the operator manually removes the finished part. In this secondary or hand operation, the machine may be used in an upright position or inclined toward the rear and the parts may be inserted from the sides, front or back.
Stanton Cheyney, sales manager for defendant, testified that this press was sold by defendant to Hammond without the dies or die set. It was necessary for Hammond to obtain and install its own dies dependent upon the type of operation for which the press was to be used. The press was sold by defendant without installation of any safety device. Counsel for plaintiff questioned the witness as to whether the machine was reasonably safe for use in the secondary or manual type of operation. The witness testified that, in his opinion, the machine was reasonably safe for operation in this manner without the addition of a safety device.
John Lang testified that he was the fabricating superintendent for Hammond. Some 3000 basic operations, of both primary and secondary nature, are performed in the Hammond punch press department. He testified that in the automatic or primary operation of the press, no safety device would be necessary and the machine could be operated with safety; assuming insertion of the proper die sets and dies and availability of electric power. However, he expressed the opinion that the machine would not be reasonably safe for operation by the manual process in any of its secondary functions unless a safety device was installed. In his opinion, the machine would be very dangerous if operated manually without a safety device. Lang testified that the press in question is activated by the operator by pressure on a foot pedal when used in a secondary operation. Also, the press is fitted with a so-called nonrepeat device which makes it impossible for the ram to descend more than once when the foot pedal is depressed. Thus, pressure on the foot pedal is always required for each individual descent by the ram.
Lang also testified that the type of dies with which the machine was to be fitted and the manner of its operation would determine the type of safety equipment that should be used for secondary or manual operation. He made that determination himself on his own judgment. Hammond installed some type of safety device upon every press prior to the time that it was used for secondary operation. After the occurrence in question, Lang inspected the machine and found that the nonrepeat cycle of the press was set and was working correctly.
Plaintiff testified that he was employed by Hammond as a punch press operator commencing in 1956. He was injured on January 16, 1964, some seven years after purchase of the press by Hammond. Plaintiff was quite experienced in this operation and was in the highest classification of punch press operators. At that time, he was using the press in question for fabrication of bakelite parts each approximately 4" x 6". He was feeding the press in a secondary or manual operation. He had been working about two hours. He was seated on a chair facing the machine. The bakelite parts were preheated by water immersion. The process was that plaintiff would pick up a bakelite piece and seat it on the bottom die with his right hand. He then withdrew his hand from the pinch area and activated the press by stepping on the pedal. The ram would descend, perforate the part and then move upward. Plaintiff then removed the part from the press with his left hand. This was a single stroke machine. This entire operation took about five seconds and plaintiff was expected to fabricate no less than 650 pieces of these parts in one hour. Plaintiff testified that he inserted a part with his right hand and activated the machine. The ram descended. When the ram ascended, he put his left hand into the area to pull out the completed part. The ram then descended again upon his left hand although he testified that he did not depress the foot pedal again.
Plaintiff had worked on other presses for other employers. He testified that different safety devices were used for different jobs rquiring manual operation. Sometimes the operator was provided with a pair of tongs. Other devices used two buttons which it was necessary for the operator to push. Another type of device was that operated by electricity which activated a guard that came down when the ram did. Quite a few of the jobs that he performed involved hand feeding of the press. During his employment at Hammond, there were different safety devices used for different job operations on the same press. Prior to undertaking the operation in question, plaintiff was assisted by a set-up man. He fit the safety equipment to plaintiff and inspected it before the operation started.
In this particular case, Hammond had fitted the machine with a Posson safety device. This mechanism was connected to the ram and also strapped in place around the arms and back of the operator. Every time that the ram came down, the device automatically pushed back the arms of the operator so that his hands would be outside of the danger area. The parties stipulated that at the time in question the safety device failed and became inoperable so that plaintiff's left hand was not pulled out of the way. The superintendent for Hammond testified that, after the occurrence, he found the Posson safety device inoperable and that this was the cause of the accident.
The remaining witness called by plaintiff was an expert engineer. He examined this machine in November of 1970, some six years after the occurrence. He answered a lengthy hypothetical question by expressing the opinion that the machine in question, delivered without any safety device, was not reasonably safe for use by punch press operators. In his opinion, the Posson device was installed to ...