On appeal from Superior Court of New Jersey, Law Division, Essex County.
Pressler, Dreier and Bilder. The opinion of the court was delivered by Dreier, J.A.D.
Plaintiff has appealed from a dismissal of his complaint based upon the trial judge's molding of a judgment for defendant based upon a jury verdict finding him 60% responsible for the accident. Plaintiff's motion for a new trial limited to damages was denied and plaintiff has appealed from both the judgment and the denial of his motion.
On May 7, 1981 plaintiff cut through most of anteromedial (front and towards the inner side) tissues in his right thigh down to the bone while using a power saw manufactured by defendant. His superficial femoral artery, the chief source of blood below the knee was 80% severed. After an operation and weeks of hospitalization he suffers from a permanent depressed scar, a disability on exertion of his leg and a permanent loss of sensation in his lower leg.
The injury occurred while plaintiff was sawing branches into logs as directed by his employer. The tool was an eight inch circular saw which plaintiff had brought from home, having purchased it in 1973. The saw had been manufactured by defendant in 1956 or 1957 and was designed so that a protective guard would automatically cover the blade as it was being withdrawn from the material that was being cut. The guard pivoted around the exposed portion of the blade and was designed to pull closed as the saw was withdrawn by means of a spring extending from the housing to a hook affixed to the guard.
Plaintiff testified that he had used the saw many times since it was purchased by him and on all occasions the guard closed as it should have. He chose to use this saw since it was more powerful than another saw supplied by his employer which was in any event being used by another employee at the time. On this occasion he was sitting cross-legged on the ground cutting the branches first on one side and then on the other in order to extend the cut completely through the wood. On each occasion he cut by pushing the saw away from him thus opening the
guard, and when he retracted the saw the guard closed. He did not know precisely when he was cut since he felt nothing, he merely noted that his leg was deeply cut and he was bleeding profusely. When he inspected the saw some time after the accident, but without its having been tampered with, he noted that the spring was not attached as it should have been but rather was wedged in the housing in a manner that kept the guard in an open position, thus affording no protection. During the approximately one hour that he had been working on this job he never noticed specifically whether the guard opened and closed, since he merely assumed that the guard would have performed its function as it always had since he purchased the saw. He had cut approximately 30 branches into logs when the accident occurred.
Plaintiff and defendant each produced expert witnesses to explain how the accident could have occurred. Plaintiff's expert, Louis Howarth, testified that the spring had wedged itself between the guard and housing so that the guard could not close even with the force of gravity due to insufficient clearance. He claimed that the spring came loose because of bending in the area of the hook and that a differently designed spring and hook could have avoided this occurrence. Specifically, he noted that a torsion spring instead of an extension spring would have prevented the jamming of the guard and would have permitted, as a last resort, the guard to pull down by force of gravity even if the spring were not utilized. Also he claimed a spring of smaller diameter would have permitted clearance between the housing and the guard, eliminating the possibility of the spring wedging the guard in an open position. Lastly, he stated that a hook with two loops rather than one would have prevented the spring from bending and catching the guard as it came down. He noted that these alternatives would have amounted to an insignificant additional cost of manufacture and, if utilized, would have, in all engineering probability, prevented plaintiff's accident. According to Howarth, the 1954 standards of the American National Safety Institute were violated
in that the guard in question did not adequately cover the blade to the depth of the teeth and automatically and instantly return to a covering position after a cut.
Although defendant urged that plaintiff's cross-legged sitting position while cutting materially contributed to the happening of the accident, Howarth gave his opinion that this position played no part in the guard's failure to cover the blade.
Defendant's expert, William Saffell, worked for defendant for 26 years in product development, electrical design and safety assurance. His opinion was that the saw met the applicable safety standards and that the wedging of the spring between the guard and housing was caused by someone intentionally disconnecting the spring. He further stated that either a torsion or extension spring would have been acceptable and would have operated the guard properly, but that ...