Opinion
November 21, 1967
Judgment herein appealed from, unanimously reversed, on the law, the judgment vacated and the complaint dismissed, with $50 costs and disbursements to appellant. Plaintiff sustained severe injuries December 18, 1958, when his left hand and arm became involved with the rollers of a Miehle No. 49, 2-color offset press which plaintiff claimed was defectively designed. At the trial of the action plaintiff's experts listed four items which they asserted would have made the machine safer and possibly have prevented the accident. Plaintiff was an experienced pressman and, additionally, had received some six weeks' training in the operation of this particular type of machine. His testimony was that due to some change of speed his left hand was drawn or thrown directly into the machine as plaintiff, using his right hand, went to pick up the lid of the machine to observe how the plate was running. The change of speed, in the number of revolutions made, had allegedly occurred on one or two previous occasions. The persons to whom plaintiff testified he reported such occurrences were present in court but were not called by plaintiff to testify. The machine in question was made in Germany by Faber Schleicher. It was sold or distributed in the United States by appellant, which had sent wiring and controllers from the United States for the machine, allegedly because the State of New York placed a violation on foreign wiring. Bearers had also been added at appellant's direction. The press was sold by appellant in 1956 to one D'Arcy, installed in August, 1956, under appellant's supervision. This was appellant's last contact with the machine prior to the accident. The press was sold by D'Arcy in December, 1957 to plaintiff's employer, Guardian Printing Lithographic Company (Guardian). Plaintiff claims that if any or all of the safeguards testified to by his experts had been added the machine might have been stopped and his injuries avoided, or their seriousness obviated. There is no proof that the machine possessed a latent or hidden defect, the existence of which was not known to the plaintiff, and which defect caused the injuries complained of. In fact the condition of which plaintiff complained was open, plainly visible and well known to plaintiff. Under such circumstances the judgment will not be allowed to stand ( Campo v. Scofield, 301 N.Y. 468). This case may be distinguished from Beckhusen v. Lawson Co. ( 9 N.Y.2d 726) in which the Court of Appeals held there was negligent design of a dangerous instrumentality and a failure to warn of a foreseeable hazard, or at least the jury could so find. Here the rollers operated in the customary manner in accordance with the purpose for which they were designed. No peril was created which was unknown to plaintiff. There were certain safety devices on the machine and the mere fact that there was testimony, after the fact, that other or additional features might have prevented or minimized the injuries will not serve to support a charge of inherent defectiveness in design. Nor was there here the failure of a safety device as in Flores v. Bliss Co. ( 14 N.Y.2d 708). We are vacating the judgment and dismissing the complaint for the reasons heretofore stated. At the very least if we did not dismiss the complaint we would order a new trial because the verdict is also against the weight of the credible evidence.
Concur — Stevens, J.P., Eager, Steuer, Tilzer and McNally, JJ.