EZILA C. DOCANTO & another [Note 1] vs. AMETEK, INC.

WILKINS, J. The defendant, a manufacturer of ironing machinery used in commercial laundries, argues various exceptions arising out of a trial which resulted in verdicts for the plaintiffs aggregating $467,000. [Note 2]

On July 16, 1968, Ezila C. doCanto (Ezila) was one of two operators of a "Troy Speedline 8 Roll Flat Work Ironer" at the Boston premises of Hospital Laundry Association, Inc. (Laundry). The defendant, Ametek, Inc. (Ametek), had sold the ironer to Laundry and installed it in the latter part of 1961. Ezila's job was to put sheets into the ironer from one side, while another operator did so on the other side. As she was feeding a sheet into the ironer that day, her right hand, caught in a sheet, was pulled into the ironer under a safety bar. Although the electricity which powered the ironer shut off when her hand activated the safety mechanism, the momentum of the rollers in the ironer caused her hand to be pulled farther into the machine. The coasting of the machine after the electricity has been shut off is described as overtravel, can be measured in inches and varies with the circumstances, particularly the speed at which the rollers were operating. At the time of Ezila's injury the ironer was operating at its maximum speed, 115 feet a minute. Ezila sustained serious injuries from the heat and pressure of the ironer. Subsequently she lost all of her fingers, except her thumb, and underwent four operations during about eight weeks of hospitalization.

Ametek's challenges to various rulings at trial can be grouped into the following categories: (1) The judge admitted, for limited purposes, evidence of changes in the design of the ironer by Ametek after the sale to Laundry, but before the accident. The judge (2) denied Ametek's

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motion for directed verdicts, and (3) refused to give several of Ametek's requests for instructions. (4) The judge declined to grant a new trial (or to revoke his order allowing a count for loss of consortium), rejecting Ametek's argument that our opinion in Diaz v. Eli Lilly & Co. 364 Mass. 153 (1973), denies recovery on any such claim in these circumstances. (5) Finally, Ametek argues that, because of the excessiveness of the $440,000 verdict in favor of Ezila, the judge should have granted a new trial. Facts relating to each area of contention will be set forth in the relevant discussion below.

1. Evidence of safety features developed by Ametek after the sale of the ironer to Laundry and before Ezila's injury properly was admitted for limited purposes. These design improvements principally involved (a) the addition of a device which reduced the overtravel of the ironer after activation of the safety mechanism, and (b) the relocation of the safety bar farther from the point at which an operator's fingers would be pinched by the pressure rolls of the ironer. The judge allowed evidence of post-sale safety improvements for three purposes: (1) to demonstrate the feasibility of redesign of the machine's safety features; (2) to show Ametek's knowledge, if any, of inadequacies in the "existing safety features" of the ironer; and (3) to establish Ametek's duty, if any, to warn purchasers of the ironer of any deficiency in the ironer's safety features. The judge instructed the jury that the evidence of safety improvements "is not in and of itself any evidence of negligence."

Ametek argues that evidence of pre-injury improvements "should be considered in the same light as evidence of subsequent improvements or repairs." The theory behind the general rule which excludes evidence of post-accident improvements as evidence of negligence rests in considerable degree on the belief that a contrary rule would discourage owners from making repairs to dangerous property. Wigmore, Evidence, Section 283 (3d ed. 1940).

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Without accepting Ametek's premise that evidence of pre-accident safety improvements should be treated the same as evidence of post-accident improvements, we note that evidence of a post-accident improvement may be admissible, in the judge's discretion and subject to limiting instructions, on a variety of other issues in a case. See Wigmore, Evidence, Section 283, p. 158 (3d ed. 1940); McCormick, Evidence, Section 275, pp. 666-669 (2d ed. 1972); Leach and Liacos, Massachusetts Evidence, 201 (4th ed. 1967). See also Federal Rules of Evidence, Rule 407, 28 U. S. C. App. (Supp. V, 1975) (as enacted by P. L. 93-595, January 2, 1975, effective July 1, 1975).

This court has permitted the introduction of evidence of post-accident safety improvements for several purposes. For example, evidence of such a change is admissible to prove the practical possibility of making a safety improvement. See Beverly v. Boston Elev. Ry. 194 Mass. 450, 458 (1907); Coy v. Boston Elev. Ry. 212 Mass. 307, 309-310 (1912). Likewise, evidence of such a safety improvement may be admissible on the issue whether the defendant knew or should have known of the danger at the time of the plaintiff's injury. See Reardon v. Country Club at Coonamessett, Inc. 353 Mass. 702, 704-705 (1968). It is clear, therefore, that on the issues of feasibility and knowledge of the risk, two of the three grounds on which the judge admitted evidence of pre-accident safety improvements, post-accident evidence would have been admissible in his discretion. We see no reason why evidence of pre-accident remedial measures should be any less admissible for the same purposes. [Note 3]

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The evidence of improved safety design did not become inadmissible on the question of feasibility merely because Ametek conceded in a general way that the design improvements were practical. In the judge's discretion, evidence, otherwise admissible, does not lose that status simply because of a general concession made by the party against whom that evidence is offered. Boeing Airplane Co. v. Brown, 291 F. 2d 310, 315 (9th Cir. 1961). See Commonwealth v. Torres, ante, 737 (1975). We reject any suggestion to the contrary in Conry v. Boston & Maine R.R. 227 Mass. 411, 414-415 (1917). [Note 4]

The evidence of pre-accident improvements was admissible also on the third ground specified by the judge: the question of Ametek's duty to warn of any deficiency in the ironer's safety. Ametek contends that by admitting the evidence on this ground, the judge in effect ruled erroneously that there was a continuing duty to warn purchasers of safety improvements made to a machine which was reasonably safe at sale. However, the evidence was not admitted for such a narrow purpose, if indeed it was admitted at all for that purpose. The duty to warn for which the evidence was admitted could have been a duty to warn at the time of sale because the overtravel of the machine when operating at full speed exceeded the distance between the safety bar and the danger point on the rollers. Moreover, a duty to warn of post-sale safety measures may have existed because of the

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negligent design of the machine as originally sold. Consequently, the admission of the evidence as bearing on a duty to warn of safety deficiencies did not involve necessarily the question of a manufacturer's continuing duty, if any, to notify customers of post-manufacture improvements to a properly designed machine. Ametek did not press the judge for limiting instructions on the scope of the admission of the evidence on the duty to warn, although the judge gave it ample opportunity to do so.

2. Ametek argues in support of its motion for directed verdicts that expert testimony concerning the design safety of the ironer was an indispensable and unsatisfied element of the plaintiffs' case. It contends that, because of the complex technology involved, expert opinion evidence was necessary to prove that Ametek failed to use reasonable care in designing the ironer.

Even if Ametek did not limit the grounds of its motion for directed verdicts to the single, forlorn prospect that this court might overrule Carter v. Yardley & Co. Ltd. 319 Mass. 92 (1946), the judge properly denied Ametek's motion. [Note 5] There was ample evidence to support the submission of the case to the jury. The jury could have found, on the basis of their own lay knowledge, that the ironer's overtravel was not consistent with Ametek's duty to design the machine with reasonable care. Carter v. Yardley & Co. Ltd., supra. Moreover, there was evidence that Ametek never advised Laundry of this particular danger. Indeed, Ametek stated in a catalogue that "a magnetic brake stops the rolls with no coasting from residual momentum." There was evidence that an Ametek employee who had designed the machine knew that this statement was incorrect. He also believed that

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a machine which failed adequately to prevent a hand from being pulled into the mechanism was improperly designed and that the ironer did permit a hand to be pulled under the safety bar. Clearly this evidence was sufficient to send the case to the jury on both the question of negligent design and the question of negligent failure to warn. Mealey v. Super Curline Hair Wave Corp. 342 Mass. 303, 305 (1961). Ametek's argument that there was no duty to advise of safety improvements after the sale of the machine could not be raised on this record by a motion for directed verdicts. [Note 6]

3. The judge committed no error in failing to give certain of Ametek's requested jury instructions.

There was evidence that Ezila's hand was unusually small, smaller than ninety-nine per cent of the female hands measured in a survey conducted for the Air Force. There was evidence, however, that Ezila's hand was not abnormal in size. Ametek requested instructions concerning its lack of liability to a person whose characteristics depart from its reasonable expectations. [Note 7] The judge was under no duty to focus in his charge on this disputed factual circumstance. Sullivan v. John Hancock Mut. Life Ins. Co. 342 Mass. 649, 657 (1961). He did instruct the jury that Ametek was required to design a product which was reasonably safe and that Ametek had no obligation to develop safety devices to protect against every remotely possible danger. He also told the

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jury to determine whether the danger was a likely one or an unlikely one and whether that danger "involved a reasonably foreseeable risk to a person such as Mrs. doCanto, as you find her to be" (emphasis supplied). These instructions adequately covered the law pertaining to any abnormality in the size of Ezila's hand.

The same principles lead us to conclude that the judge did not err in refusing to instruct the jury concerning the written standards of the American Standard Safety Code for Laundry Machinery and Operations. [Note 8] The meaning of the safety code was a contested question of fact. Ametek asserted the code required merely a safety bar that would stop the ironer, and all parties agreed that the safety mechanism stopped the machine. The plaintiffs contended that to comply with the code, the safety bar or other guard must be capable of stopping the machine within a reasonable time. This dispute presented a factual question for the jury. See Liberatore v. Framingham, 315 Mass. 538, 543 (1944); Wadsworth v. Boston Gas. Co. 352 Mass. 86, 93-94 (1967).

Finally, Ametek argues that the judge should have instructed the jury that Ametek "was under no duty to inform purchasers of its machines of any facts regarding changes or improvements it later decided to incorporate in the manufacture of similar machines." This request did not embody a correct statement of the law in light of the evidence.

There was evidence from which the jury could have found that the machine was negligently designed and its braking capacity misrepresented. When the manufacturer

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of such a machine learns or should have learned of the risk created by its fault, it has a duty to take reasonable steps to warn at least the purchaser of the risk. See Carney v. Bereault, 348 Mass. 502, 506 (1965). One such reasonable step may be to warn at least the purchaser of changes which eliminate or tend to eliminate the risk created by the manufacturer's initial fault.

The judge charged the jury that in determining Ametek's negligence, if any, they would probably want to determine what warnings after sale, if any, Ametek should have given. Ametek did not object to this portion of the judge's charge. It made no attempt to focus the judge's attention on the distinction between a duty to warn of post-sale safety improvements in a properly designed machine and such improvements in a machine which was designed improperly. There was no error in the denial of Ametek's request concerning a duty to warn, or in the judge's treatment in his charge of the general subject of a duty to warn. [Note 9]

4. The judge committed no error in denying Ametek's post-trial motions concerning the verdict under count 3

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(recovery for loss of consortium). Ametek argues that our opinion in Diaz v. Eli Lilly & Co. 364 Mass. 153, 167, n. 48 (1973), which came down on the second day of the trial of this case, indicates that a spouse may not recover for the loss of consortium in the circumstances involved here.

This action originally contained claims on behalf of Ezila for personal injuries and on behalf of Justiniano for consequential damages (but not for loss of consortium). On the day before trial, the plaintiffs without objection by Ametek amended their declaration to add three counts, one of which alleged loss of consortium. Ametek did not plead the statute of limitations and did not seek, at any time, to amend its answer to do so. On the fourth day of trial, just prior to the judge's charge to the jury, the plaintiffs, again without objection by Ametek, amended their declaration to state their claims in three counts, identical to those added by the prior amendment. Although Ametek presented a motion for directed verdicts on each count, it did not advance any argument focused on the consortium count. [Note 10]

After trial Ametek moved for a new trial and also moved that the judge revoke his order allowing the filing of count 3, arguing in each instance "as a matter of law . . . [the claim] was barred" by the statute of limitations. The motions were denied.

These post-trial motions raise matters of discretion with the judge and cannot be used to compel the judge to rule on questions of law which could have been raised at trial but were not. Kinnear v. General Mills, Inc. 308 Mass. 344, 348 (1941). Commonwealth v. Venuti, 315 Mass. 255, 261-262 (1943). Nussenbaum v. Chambers & Chambers Inc. 322 Mass. 419, 425 (1948). Daddario v. Gloucester, 329 Mass. 297, 301 (1952). There is no

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showing that the judge made any ruling of law in denying these post-trial motions. If he had passed on them in terms of the running of the statute of limitations, his ruling would have been correct because Ametek had not pleaded the statute of limitations. There was no abuse of discretion in denying these motions. [Note 11]

5. The judge did not abuse his discretion in denying Ametek's motion for a new trial on the personal injuries count on the ground of excessive damages. The allowance of a new trial for this reason rests in the sound discretion of the judge. Bartley v. Phillips, 317 Mass. 35, 41-42 (1944). Unless the damages awarded were greatly disproportionate to the injury proven or represented a miscarriage of justice, an appellate court will not find an abuse of discretion in the judge's refusal to grant a new trial. Loschi v. Massachusetts Port Authy. 361 Mass. 714, 715 (1972). In concluding that the judge committed no error of law, we consider Ezila's age (twenty-nine) and weekly earnings ($140) at the time of the accident; the loss of ninety-five per cent of the function of her right hand (her dominant hand); her inability to perform many household tasks or to obtain employment; her pain and suffering, particularly while her hand was in the machine and while she was in the

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hospital where her fingers were amputated and skin grafts undertaken; her disfigurement, including scars from skin graft operations; her future need for artificial hands; and her continuing discomfort and embarrassment. Although many of these elements of damage are incapable of precise, monetary measurement, the trial judge, who saw the injured plaintiff and heard her testimony, is in a far better position than we to determine the reasonableness of the jury's award. We find no abuse of discretion.

Exceptions overruled.