APPEAL from the Circuit Court of Cook County; the Hon. JAMES
H. FELT, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
This is a personal injury action based upon strict tort liability. Plaintiff, Broadus Scott, was injured while operating a press brake manufactured by defendant, Dreis & Krump Manufacturing Co., and sold to the plaintiff's employer, Hasco Electric Company. After a jury trial, judgment was entered for plaintiff in the sum of $125,000. Defendant appeals and presents three principal contentions: (1) the trial court erred in not considering, and not allowing the jury to consider, the defense theory that the press owner, rather than the press manufacturer, had the responsibility for selecting the appropriate safety devices; (2) the trial court erred in preventing the jury from considering the evidence on assumption of risk (3) plaintiff's closing argument was prejudicial and deprived defendant of a fair trial. The facts follow.
Emmett McCarthy, executive vice president of Dreis & Krump Manufacturing Co., was called by plaintiff as an adverse witness. He testified that the machine was manufactured in 1955 and sold to Hasco Electric Company in the same year. He inspected the machine in 1969, approximately 3 years after the injury to plaintiff.
The machine in question is referred to as a press brake. Its function is to bend and shape metal. The press itself is approximately 8 feet wide and 6 feet high. During operation, the ram, the movable upper section of the press, descends upon the bed or lower section. Dies are attached to the ram and the bed. When the ram descends upon the bed, the dies press the metal into the desired shape. The area between the ram die and bed die is referred to as the "point of operation." Without the insertion of the dies, the ram and bed are between 9 and 12 inches apart. When dies are inserted the opening varies from zero to 6 inches. The press can accommodate innumerable dies, the size and function of which may vary.
The press is electrically powered, and has an on-off switch. The switch does not activate the ram, but merely powers the motor. The actual engaging mechanism is called a treadle. The treadle is a lever on a long shaft which is connected to the clutch and operated through the use of a foot pedal. The operator depresses the foot pedal, the clutch is engaged, and the gearing mechanism causes the ram to come down. When the foot pedal is released the clutch is disengaged and simultaneously a braking mechanism is engaged. The foot pedal itself is not fixed, but may be moved along the length of the press to accommodate the position of the operator.
The witness testified that when the foot pedal is released, the ram stops immediately rather than first completing an up or down cycle. This permits the operator to "inch" or jog the ram downward. Although the witness stated that the ram would not continue to operate when the electrical current was shut off, he did acknowledge that the flywheel would continue in motion for a certain period of time even though the power was turned off. He further acknowledged that the inertia of the flywheel after the power is cut could be sufficient to cause movement of the ram, if, in addition, the clutch were engaged.
Joseph De Lucca, a professional engineer, testified on behalf of plaintiff as an expert witness. He stated that he examined the press brake at Hasco Electric Company in May 1966, approximately 2 weeks after the incident. It was not equipped with any safety device even though various safety devices were available and commonly used in the industry to prevent injury to the operator. One safety device consists of a guard placed in front of the point of operation. The guard has a small slit opening through which the material is pushed, thus rendering it impossible for the operator to put his hands between the dies. Other machines have dual controls which require the operator to keep both hands occupied when he uses the machine. In his expert opinion, the press brake was not in a reasonably safe condition for the operator.
On cross-examination, the witness stated that the press brake is versatile in its operations; it could shape material as small as the numbers on a clock or shape material almost 8 feet wide. Because of its versatility, he admitted that any one of the various safety devices only becomes reasonable in light of the manner in which the machinery is set up for the particular operation. He further admitted that since the owner of the machine determines its setup, the owner determines what safeguard is appropriate.
Irving Hazard, a registered professional engineer, testified as an expert witness. In his opinion the machine was in an unreasonably dangerous condition for the reasons that the machine had no guards or safety devices and that the inertia of the flywheel could cause the machine to operate even though the motor has been turned off. With respect to the latter reason, the witness stated that a lock-out device could be installed to prevent the machine from operating after the electrical current is turned off. One such lock-out device would be a simple solenoid switch which would lock the clutch in its disengaged position whenever the electrical power is interrupted. The solenoid switch is inexpensive and has been known to science and industry since the latter part of the nineteenth century. The witness further stated that there are hydraulic presses which do not have flywheels. When a hydraulic press is switched to the "off" position it cannot continue to operate.
The witness also testified to various shield and guard devices, dual controls, and photoelectric mechanisms. The technology for these devices existed prior to 1945. Plaintiff then introduced into evidence the 1960 American Safety Standards Code. Mr. Hazard read the following sections of the Code:
"5. Safeguarding at the Point of Operation. 5.1. General. Each press should be equipped and operated with a point of operation guard or a point of operation protective device for every press operation performed, except where the point of operation is limited to an opening of 1/4 inch or less.
5.2 Point of Operation Guards. Design and Construction. Every such guard should be reliable in construction, application and adjustment. The guard should be attached to the press or to the die. The guard shall not offer any accidental hazard. It shall be so designed and constructed as to facilitate inspection and to minimize the possibility of removing or misusing essential parts.
5.2.5. Fixed Barrier Guards. A fixed barrier guard shall enclose the point of operation in conformity with Table 1. It shall be secured to the press frame by fasteners.
18.104.22.168. Gate or movable barrier device. Sequence of Operation. The gate or movable barrier device shall enclose the point of operation before power is transmitted to the slide.
22.214.171.124. Interlocking. Gate or movable barrier devices shall be interlocked with a clutch control mechanism so that the downward motion of the slide cannot begin until the device encloses the point of operation.
6. Power press action equipment. 6.1. Power Pedal Cover Guard. Each pedal or foot switch on foot operated power presses shall be provided with a cover or guard to prevent the operation of the press except by a downward pressure of the operator's foot or an equally effective mechanism shall be provided."
The pedal on the machine in question was unguarded.
On cross-examination, the witness stated that an infinite number of dies could be utilized in the machine. He also stated that there are many press operations where the raw material is automatically fed into the machine and automatically ejected by the use of a kick-out die. The witness stated that he was not familiar with the 1971 Code of American National Standard Safety Requirements for the Construction, Care and Use of Mechanical Power Presses. The witness read the following sections of the 1971 Code:
"Section 5. Safeguarding the Point of Operation. 5.1. It shall be the responsibility of the employer to provide and insure the usage of either a point of operation guard or a properly applied and adjusted point of operation device on every operation performed on the mechanical power presses. *fn1
5.1.1. Die Builder. It shall be the responsibility of the die builder to design and construct all new dies to eliminate the need for the operator to place his hands or fingers within the point of operation.
6.1.2. Employer. A primary objective of this standard is to eliminate exposure of operator's hands or fingers to the hazards within the point of operation. Only the employer can regulate the dies used and the manner in which they are operated. The requirements of 6.1.2. are therefore critical in eliminating point of operation injury to the operator."
Plaintiff was allowed to read the deposition testimony of Paul Dragastin, staff engineer for defendant. He stated that the flywheel has enough inertia to continue to operate for 2 or 3 minutes after the power was shut off. He did not recall placing a warning on the machine to that effect, and within this 2- to 3-minute period the ram could be activated by depressing the foot pedal.
At the time of the occurrence, May 17, 1966, plaintiff was 19 years old. He had worked at Hasco Electric Company 3 to 4 weeks prior to the occurrence. This was his first experience in a factory. He was from North Carolina and had never operated machinery before other than a power mower.
In operating the machine, plaintiff would stand opposite the center of the press, obtain material off a skid to his left, place it on the bed, and slide it into the machine. The backstop prevented the material from going beyond a certain point. The metal he had used that particular day was approximately 5 feet long and 2 feet wide and about as thick as a quarter. After inserting the metal sheet he would push the foot pedal, and the material would be pressed by the action of the ram and the bed.
On May 17, 1966, about 3 P.M., there was a coffee break. He went behind the machine and turned off the electric switch. He then proceeded to remove the material from the bed when the ram came down on his right hand. About 2 minutes elapsed from the time he turned off the switch until the accident occurred. He stated that he must have contacted the treadle.
On cross-examination, the witness testified that at the time of the occurrence he did not know that the machine could continue to operate after the current was shut off. He stated, however, that on one or two occasions, he had seen fellow employees activate their machines by switching off the current and "mashing the foot pedal." With respect to the injury at bar, plaintiff's contact with the foot pedal was inadvertent rather than deliberate.
Emmett McCarthy was the only defense witness. Defense counsel attempted to ask the witness whether it was the responsibility of the employer to provide and insure the usage of safety devices at the point of operation. An objection to the question was sustained. Additionally, defense counsel was not permitted to introduce into evidence a section of the Department of Labor's Occupation Safety and Health Standards. *fn2 The court based its ruling, in part, upon its belief that the Federal regulations exempted press brakes, and in part, upon its belief ...