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Bexiga v. Havir Manufacturing Corp.

Decided: April 26, 1971.

JOHN BEXIGA, JR., AN INFANT BY HIS GUARDIAN AD LITEM, JOHN BEXIGA, SR., AND JOHN BEXIGA, SR., INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
HAVIR MANUFACTURING CORP., DEFENDANT-RESPONDENT



Sullivan, Collester and Labrecque.

Per Curiam

Plaintiffs appeal from an adverse judgment following the granting of defendant's motion for involuntary dismissal at the close of their case.

Plaintiff John Bexiga, Jr. sued for loss of fingers and deformity to his right hand caused by its being struck by the ram of a punch press which he was operating for his employer Regina Corporation (Regina). The action was grounded in negligence, strict liability in tort and breach

of warranty of fitness of purpose. His father sued for loss of services and expenses.

The power press in question was manufactured by defendant Havir Manufacturing Corp. (Havir) in 1961 and was sold that same year to J. L. Lucas & Son, Inc. and shipped to Regina, the employer of John Bexiga, Jr. There was no contention that the press malfunctioned because of defective materials, workmanship or inspection. Rather, plaintiffs' theory was that the press, though properly manufactured so far as it went, was so inherently hazardous that the manufacturer was under a duty to protect the ultimate user from the danger posed by it. Reduced to its simplest terms, plaintiffs' basic contention was that the machine should have been equipped at the factory with some form of safety device to guard against or minimize the danger.

Plaintiffs' proofs were to the effect that on June 12, 1966 plaintiff John Bexiga, Jr., an 18-year-old high school junior who had been working evenings for Regina for approximately two months, was directed, for the first time, to work on the machine in question. His supervisor showed him how to operate the machine and then left. He had been operating it for about half an hour when, as he described the accident:

Well, I put the round piece of metal on the die and the metal didn't go right to the place. I was taking my hand off the machine and I noticed that a piece of metal wasn't in place so I went right back to correct it, but at the same time, my foot had gone to the pedal, so I tried to take my hand off and jerk my foot off too and it was too late. My hand had gotten cut on the punch, the ram.

The machine was adaptable to a number of operations but was being used at the time solely as a punch press to punch holes in small metal discs. Its essential components were the ram, the die and a foot pedal which actuated a clutch causing the ram to descend with tremendous force (it was rated at ten tons*fn1) when the pedal was depressed. In actual

operation, when a disc similar to the ones Bexiga was handling would be placed on the die and the pedal depressed, the ram would plunge downward onto the disc four inches below, it would then return to its original position, the finished disc would be automatically blown into an adjoining container, the trimmings would be ejected and the press would be ready for another cycle. The only protective device with which the press was equipped at the factory was a metal guard for the large flywheel.

A mechanical engineer called by plaintiffs testified as an expert that at the time of the accident the press amounted to a "booby trap" because of the absence of a protective device to prevent the ram from descending while the operator's hands were in the work area (point of operation) beneath it. He testified that effective protective devices to guard against the hazard were available and known to the trade, both at the time the press was purchased and at the time of the accident. He described one such device as a pair of push-button controls so spaced as to require the use of both of the operator's hands before the ram could be activated. Another was a guardrail or swing gate (of which there were many variations) to shield the operator's hands from the ram. His testimony would have supported an inference that had the press been equipped with either form of safety device the accident would probably not have happened.

The expert conceded, however, that at the time the press was purchased and up to the time of trial, in accordance with the practice in the trade, presses like the one here involved were not equipped with guardrails at the factory, but it was customary for the ultimate purchaser of the machine to install them. This was because the appropriate type of guardrail or other device to be employed in a given case would depend on the particular use to which the machine was to be put. He opined, nevertheless, that the machine ...


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