This appeal by the plaintiffs arises from a jury verdict of no cause of action in *682 their products liability suit against the manufacturer of the machine which injured James L. Timmerman (hereinafter "plaintiff’).
On June 16, 1970, plaintiff was operating a machine known as a "printer-slotter” for his employer, Stone Container Corporation. The machine prints labels and other material on heavy cardboard and then fabricates same into boxes. The machine is large and utilizes 250-pound rollers. There is a clearance between rollers of 0.007 inches. The rollers require inking and adjustment along their length, which is done from a catwalk approximately five or six feet above the ground and running parallel to the rollers. The catwalk permits the operator of the machine to walk along the length of the rollers to adjust the ink flow from numerous spigots set above and parallel to the rollers and to paddle the rollers to effect uniformity of ink distribution. Constant tension to the rollers is required to avoid loss of costly stock into scrap.
Part of the catwalk adjacent to the rollers is of a web steel construction and is divided into four sections. The rollers and certain other portions of the machine are exposed by opening hinged sections of the aforesaid catwalk in order to facilitate certain adjustments which might be required from time to time. The machine was manufactured by defendant and sold to plaintiffs employer in February, 1969.
At the time of the accident, plaintiff was adjusting the ink flow and moving in a backward direction from one spigot to the next, which was an undisputed appropriate manner of adjusting the ink spigots. At the time in question, a section of the catwalk behind him was open, and as plaintiff continued to move backward, his right foot went *683 through the opening and into the rollers where it was crushed. Eventually, it had to be amputated.
The grate had either been left open by an operator from the previous shift, or by the plaintiff himself, although it is undisputed that at the time of the accident plaintiff was unaware that the grate was open. The machine could only be turned off at ground level. The plaintiffs screams caused another employee to shut off the machine.
Until immediately after the accident, the catwalk sections were not equipped with micro-switches, interlocks, or safety switches which would prevent the machine from being operated while a section of the catwalk was open. There was testimony that such safety switches were feasible and were in use in other applications long before the machine in question was manufactured. Indeed, the plaintiffs employer equipped the catwalk with such devices at a comparatively modest cost immediately after the plaintiffs accident.
The Timmermans sued the manufacturer of the machine, alleging improper design and construction for failure to provide safety devices. They also alleged breach of implied warranty of fitness, contending that the machine was unreasonably hazardous and, therefore, unfit for the purposes intended. The defendant, over the Timmerman’s objections, was permitted to join Hartford Insurance Company, the worker’s compensation insurance carrier for plaintiff’s employer, as a third-party defendant, on the theory of negligent inspection.
On appeal, the Timmermans allege various instructional errors as bases for reversal.
In his jury instructions on the negligence count, the trial judge included an instruction on the plaintiffs contributory negligence. Later, when *684 instructing on the breach of warranty claim, he did not mention contributory negligence. When the instructions were concluded, but before the jury retired to deliberate, plaintiffs counsel requested that the trial judge clarify the jury instructions on breach of warranty to say that the plaintiffs contributory negligence cannot be considered with respect to that count. The trial judge denied this request.
Contributory negligence is not a defense to a breach of warranty action.
Kujawski v Cohen,
It is erroneous to refuse to give requested jury instructions which correctly state the law applicable to the facts, unless such requests are covered by the general charge in a fair and adequate manner.
Holbert v Staniak,
Since the plaintiff’s claims of negligence and breach of warranty were so closely related and depended on an identical factual development, the jury may have been confused and considered the contributory negligence defense with respect to the breach of warranty count as well as the negligence count. The trial court should have given the clarifying instruction as requested by plaintiff’s counsel. This is the type of error which may well have affected the result, and therefore requires reversal.
Our analysis of this issue cannot stop here, however, since there exists a more fundamental
*685
error requiring reversal. In the recent decision of
Tulkku v Mackworth Rees Division of Avis Industries, Inc,
In the case at bar, the plaintiffs’ assertion of negligence was based on Universal’s failure to equip the "printer-slotter” with a shut-off device, buzzers, or other safety devices. There was evidence of the ready availability and comparatively low price of such safety devices, as well as their subsequent installation by the plaintiffs employer. Therefore, under Tulkku, supra, it was reversible error for the trial court to instruct the jury on contributory negligence with respect to the negligence count. The plaintiffs are entitled to a new trial.
In
Tulkku,
the Supreme Court declined to consider the effect of comparative negligence which was adopted in Michigan by the enactment of MCL 600.2945; MSA 27A.2945 and by the decision in
Placek v Sterling Heights,
We find that the other issues raised by the plaintiffs are without merit.
Reversed and remanded for a new trial.
Notes
The policy reason upon which this conclusion is based was summarized by the Court,
"If we are to continue to foster the protection of the worker and to encourage manufacturers to take all reasonable precautions in designing and manufacturing safety devices, we cannot allow the discredited doctrine of contributory negligence to undermine these goals.”