This is an appeal from a judgment for plaintiff entered upon a jury verdict in a diversity action for negligent design and breach of a statutory duty brought by an apprentice press assistant who lost the fingers of his right hand while cleaning transfer drums of an offset press manufactured and installed by appellant and sold to appellee's employer.

In 1967, plaintiff-appellee Eugene V. Krugh, then seventeen years old, entered the employ of the Simplicity Pattern Company in Niles, Michigan. On the evening of May 17, approximately five to six weeks after beginning his employment, Krugh, with Gerald R. Lewis, the second pressman, and Wilmer Oswalt, another employee, was working on a four color offset press manufactured by appellee and installed by it at Simplicity about a year earlier. The press was mounted on two concrete walls erected in a pit at a height to afford a clearance of approximately five feet to permit employees to work beneath the press.

The maintenance of the press required periodic manual cleaning of the transfer drums to remove accumulations of ink and dust. Cleaning was usually performed once during each shift and took from three to five minutes. The drums, large metal cylinders approximately nineteen inches in diameter and six to seven feet long, revolved in opposite directions during operation and cleaning. During cleaning the transfer drums were rotated by activating controls in the pit to expose the drum surfaces a portion at a time. When the 'inch' button was pushed, the drums would rotate a short distance and stop. A 'reverse' button permitted the cylinders to be moved in the opposite direction, and a 'stop' button with a lock ring enabled a worker in the pit to render the press inoperable. Gerald R. Lewis, Krugh's supervisor, testified that the procedure for cleaning the drums during his shift was to place the press on 'safe' by locking the 'stop' button before touching any moving parts. Lewis, as well as another Simplicity employee and Brandt, appellant's expert witness, also testified, however, that the proper cleaning procedure was to move the drums short distances with the 'inch' button, clean the exposed surface with a rag and solvent, and then move the durms again to expose other portions of the surfaces. The movements of the drums were visible and audible.

On the evening in question, Lewis, who was in charge of the cleaning operation, left the floor for a moment and, according to his testimony, directed Krugh and Oswalt who were in the pit under the press not to begin cleaning until he returned. Both Oswalt and Krugh testified, however, that they did not hear this direction and that they proceeded to clean immediately. According to Oswalt, Krugh was cleaning the drums while they were continuously in motion. Krugh testified, however, that he was cleaning by periodically pushing the 'inch' button in the manner already described, but that he knew that the cylinders had not completely stopped when his right hand was drawn between them and he sustained the injury. Although he admitted that he was aware of the likelihood of personal injury if his hand should be caught in the 'pinch point' between the two drums, he added that he was not aware that the transfer drums would rotate as much as they did when the 'inch' button was employed.

Other evidence was adduced concerning the extent to which the transfer drums might 'coast' after pressing the 'stop' button or after releasing the 'inch' button. An employee of appellant testified that the 'coast' could be as much as twenty inches after the 'inch' button was released. An expert witness for Krugh testified that the 'coast' could be as little as two inches or as much as forty-five inches depending upon the speed of the drums at the time the motor was 'de-energized' and that coasting after the inch button was released was 'significant'. No warning of the potentially hazardous coasting was ever relayed to appellee.

At the time that appellant manufactured the press that injured Krugh, there was at least one other press that had been designed to eliminate coasting. Moreover, in designing its own presses, appellant installed a barrier to protect operators from access to comparable zones of danger on the top side of the machine. Illumination of the top area of the press was excellent in contrast to the dimly lighted pit. There was also testimony that a similar safety guard on the underside of the press was practicable and would have prevented Krugh's injury.

As the result of his injury, Krugh was disabled from employment at Simplicity for three months until August 17, 1967, when he returned to work in the same capacity at the same wage. Thereafter he was employed at Simplicity at a higher wage until October 4, 1968, when he left because Saturday employment was inconsistent with his religious beliefs. At the time of trial Krugh was studying to become a nurse.

Shortly after the accident, Krugh sued the Mieble Company for breach of warranty and negligent design. The court directed a verdict for appellant on the breach of warranty claim, and submitted the case to the jury on the theories of negligent design and violation of section 15 of Act 285 of P.A. of 1909, M.S.A. 17.25 which makes unlawful the installation of machinery without proper safeguards. The essence of Krugh's complaint was that the extent of the coasting of the drums, particularly in the dark pit, was so hazardous that a safety guard was required and that it was a hidden or latent danger that required either warnings or a safety guard or both. The jury returned a verdict for Krugh in the amount of $73,496.59.

On appeal, the Miehle Company makes four assignments of error: (1) that the district court erred in instructing the jury that M.S.A. 17.25 was applicable in a suit brought against the manufacturer of a device by an employee of its purchaser; (2) that the district court erred in denying its motion for a directed verdict and for judgment n.o.v. because appellant breached no duty owed to Krugh and because Krugh was guilty of contributory negligence as a matter of law; (3) that the district court erred in refusing to give three requested negligence instructions; and (4) that the award of damages was excessive. We hold that the statute had no application to this case but that the district court did not err in submitting the case to the jury on the common law negligence claim and in refusing to give the requested instructions. Because a new trial is required, we do not decide whether the damage award was excessive.

Machinery; safeguards; condemnation; inspection, fee

Sec. 15. It shall be the duty of the owner of any factory, storehouse or warehouse, or his agent, superintendent or other paeson in charge of the same, to furnish or supply, or cause to be furnished or supplied, and equip all machinery in use with proper shifters or other mechanical contrivances for the purpose of throwing belts on or off pulleys. It shall be unlawful for any person, firm, copartnership or corporation, to operate or cause to be operated, any of the machinery or equipment mentioned in this section, without it being first properly equipped with proper safety devices and guards. All gearing and belting shall be provided with proper safeguards, and when necessary, machinery shall be provided with loose pulleys. All vats, saws, pans, planers, cogs, set screws, gearing and machinery of every description shall be properly guarded. The commission after hearing duly had shall have power to condemn such machinery and wequipment if the same is unsafe, and stop the operation of such machinery and equipment until same be put in safe condition. It shall be unlawful for any person, firm or corporation, or agent thereof, to install or place in operation any of the machinery or equipment mentioned in this section unless the same be equipped with proper safeguards, or unless the same be approved by the commission or factory inspector. When requested in writing by any owner of such machinery or equipment, or agent of such owner, the commission shall within 6 days cause such machinery to be inspected. The commission, or factory inspector, as the case may be, shall determine whether such machinery or equipment is porperly guarded. The findings of the commission or inspector shall be in writing and a copy shall be furnished said owner, or his agent, and a copy shall be filed in the office of the commission at Lansing. A fee of not to exceed 5 dollars may be charged for each such inspection. Such fees shall be turned into the state treasury and placed in the general fund.

Appellant contends that this statute does not apply because: (1) it imposes liability for injury caused by unguarded machinery only opon owners of specified establishments on whose premises the injury occurs and not on suppliers of machinery; and (2) presses are not among the kinds of machinery regulated.

Since jurisdiction is based on diversity of citizenship, we must, in construing this statute, interpret it as the Michigan Supreme Court would were this case before it; and, in so doing, we employ Michigan principles of statutory construction. Moreover, we 'may (also) utilize the blessings of hindsight (in the realization that a) glance at the past will (often) reveal the considerations that led to the enactment of the legislation before us . . ..' Town & Country Motors, Inc. v. Local Union No. 328, 355 Mich. 26, 49, 94 N.W.2d 442, 454 (1959). This statute was enacted before a workmen's compensation law existed in Michigan and when lawsuits were being filed in increasing numbers by employees against their employers for injuries caused by unsafe working conditions. Within a decade, however, a workmen's compensation law was enacted in Michigan, and suits brought by employees under this statute virtually ceased.

Although the practical construction accorded this section by the conduct of employees for sixty years may be persuasive, it is the language of the section itself that determines whether liability extends to a manufacturer and supplier of machinery that injures an employee of its purchaser. Although this is a case in which civil liability is sought to be imposed, we observe that the statute is a penal statute and that it must therefore be strictly construed. E.g., Bremer v. Equitable Construction & Mortgage Corp., 26 Mich.App. 204, 182 N.W.2d 69 (1970), aff'd, 386 Mich. 187, 191 N.W.2d 331 (1971). Moreover, we also consider the principle of ejusdem generis, which is especially applicable to penal statutes:

In general, where no intention to the contrary appears, general words used after specific terms in a statute, or following an enumeration of particular classes of persons or things, are to be confined to things that are in ejusdem generis with the things previously specified, and apply only to persons or things of the same general nature as the preceding particular classes of persons or things.

21 Michigan Law and Practice, Statutes, 90. See also, e.g., Board of Control of the Michigan State Prison v. Auditor General, 197 Mich. 377, 163 N.W. 921 (1917), McDade v. People, 29 Mich. 50 (1874).

The usual difficulties attending the construction of a statute are greater in this case because of the ambiguity and imprecision of the language of the section and because we have been unable to find, and the parties have not cited, any legislative history that might help us ascertain the legislative intent. The first sentence of the section imposes liability only on 'the owner of any factory, storehouse or warehouse, or his agent, superintendent or other person in charge of the same . . ..' The second sentence refers to 'any person, firm, copartnership or corporation,' and the sixth, to 'any person, firm, corporation, or agent thereof.' Appellant argues that the entities listed in the second and sixth sentences are within the scope of the statute only if they are also owners of a factory, storehouse or warehouse. Appellee, on the other hand, would have us read the second and sixth sentences without any limitation of ownership imposed by the first. Appellee has adduced nothing that would warrant such a broad interpretation. Accordingly, we believe that in light of the problems incident to actions for injuries against factory owners at the time of the enactment of this section, it is consistent with established principles of statutory construction to read the statute as imposing liability only upon the owner (and persons under his control) of an industrial establishment where an injury occurs. And it is of no consequence whether the owner is a 'person, firm, copartnership of corporation.' Since we have determined that the statute is not applicable, we find it unnecessary to consider appellant's contention that offset presses are not the kinds of machinery upon which the statute requires safety devices to be placed.2

Appellant's contention that the district court erred in refusing to grant its motion for a directed verdict or for a judgment n.o.v. on the negligence claim, requires us to view the evidence in the light most favorable to appellee. In products liability cases in which it is alleged that an injury was caused by faulty design, liability is usually asserted on one of three theories:

(a) that the manufacturer's design has created a concealed or hidden danger; (b) that the manufacturer has failed to provide a needed or reasonably required safety device; or (c) that the manufacturer has used or employed material of inadequate strength or quality suitable for the intended use. Parsonson v. Construction Equipment Co., 386 Mich. 61, 64, 191 N.W.2d 465, 466 (1971)

In this case, the first two theories are advanced. Considering the evidence, we hold that questions of fact were raised that were properly submitted to the jury.

The evidence demonstrated that a safety device was feasible and practicable, and it therefore became a question of fact whether appellee was negligent in failing to provide such a device. And appellant's contention that the hazard to be guarded against was obvious has little relevance to the question of the reasonableness of employing a safety device. See, e.g., Coger v. Mackinaw Products Co., 48 Mich.App. 113, 210 N.W.2d 124 (1973). In that case, plaintiff's hand was partially amputated when a co-worker activated a mechanical log splitter that propelled a log on which plaintiff had rested his hand into the cutting edge of the machine. Although plaintiff knew of the danger of catching his hand between the wedge and the log, his knowledge did not preclude an award of damages against the manufacturer of the log splitter for failure to install a safety device that would have eliminated the hazard. Accordingly, it was proper here to submit to the jury the question whether the manufacturer discharged its 'duty to use reasonable care to guard against unreasonable or foreseeable risks,' and 'whether as a practical matter a safety device should have been put on the product by the manufacturer'-- even though appellee was aware of the danger of placing his hand in the 'pinch point' between the drums. Id. at 122, 210 N.W.2d at 128.

We also hold that the evidence that the drums coasted after release of the 'inch' button presented a jury question whether this tendency was a latent danger that required appropriate warnings or a safety device, and not a patent one. Parsonson v. Construction Equipment Co., supra. In Brynes v. Economic Machinery Co., 41 Mich.App. 192, 202, 200 N.W.2d 104, 109 (1972), the court reversed the granting of a motion for summary judgment in favor of the defendant-manufacturer and remanded for trial a case in which an employee, repairing a machine, was injured when a co-worker activated it. The court observed:

It is true that plaintiff was aware of the risk and that many cases find no duty where the danger is obvious. This requirement must be considered in conjunction with the modern tort concept that awareness alone does not preclude negligence. A danger may be obvious but not appreciated. Even where a danger is appreciated, circumstances may cause it to be momentarily forgotten. Id. at 202, 200 N.W.2d at 109.

Similarly, in Murphy v. Eaton, Yale & Towne, Inc., 444 F.2d 317 (6th Cir. 1971), an action against the manufacturer of a truck for injuries suffered when bales of hides fell from it on the driver who had overloaded the vehicle, this court, applying Michigan law, reversed summary disposition for defendant and remanded for trial the questions 'whether the defect (in design alleged) was obvious or hidden, and whether plaintiff had knowledge of the danger . . ..' Id. at 327.

On the question of the obviousness of the claimed defect in the design of the press, plaintiff testified:

Q. When you put your right hand into position where you would have to have it to clean the transfer drums, did you believe that the cylinders were stopped at that time? A. I didn't believe-- I knew the cylinders wasn't completely stopped, but they coasted way beyond what they had. To me they felt like they coasted beyond the point they had before.

From this testimony, from testimony of expert witnesses and from that of appellant's employee, a jury could conclude that although Krugh was aware that injury could result if his hand were caught in the 'pinch point', he was unaware of the propensity of the transfer drums to coast to the extent that they did. Accordingly, it could have determined that a warning or a safety device was required.

Although the question whether the danger was latent or patent in this case is a close one, in Michigan, "the doubtful case in each instance calls for jury instruction and jury verdict rather than a verdict by order of the court'.' Jordan v. Whiting Corp., 49 Mich.App. 481, 495, 212 N.W.2d 324, 332 (1973) citing Washington v. Jones, 386 Mich. 466, 471, 192 N.W.2d 234, 237 (1971).

The next question is whether plaintiff's conduct constituted contributory negligence as a matter of law. In Michigan, 'the entry of a directed verdict in favor of a defendant which is based upon a plaintiff's alleged contributory negligence is only proper where from the evidence presented all reasonable men would agree that plaintiff was guilty of 'no care at all'.' Coger v. Mackinaw Products Co., 48 Mich.App. 113, 120, 210 N.W.2d 124, 127 (1973), citing Normand v. Thomas Theatre Corp., 349 Mich. 50, 57, 84 N.W.2d 451, 454 (1957). Cf. Uren v. Toth, 5 Mich. App. 170, 146 N.W.2d 137 (1966).

Krugh testified that he, as well as others, had used the 'inch' button to clean the drums, and that on the occasion of his injury, the durms appeared to 'coast' further than they had done before when the 'inch' button had been released. Under Michigan law, his failure to anticipate the extent of the 'coast' based upon his previous experience was not so clearly negligent that the case should have been removed from the jury's consideration. Thus, in Tracy v. Finn Equipment Co., 310 F.2d 436 (6th Cir. 1962), this court affirmed a verdict for plaintiff who had been injured when he had removed by hand, material that was clogging the operation of a machine even though he was aware that removal of the debris might cause the machine to begin operating immediately and injure him. In Garfield v. Lapham, 173 Mich. 217, 139 N.W. 3 (1912), the Michigan Supreme Court found that defendant was not entitled to a directed verdict on the ground that plaintiff was guilty of contributory negligence as a matter of law in a case where plaintiff was injured while cleaning out by hand rotating rollers of a corn-husking machine, because there was evidence that the person who had given him instructions had also used his hands in demonstrating how to clean the apparatus. Finally in Gronlie v. Positive Safety Mfg. Co., 50 Mich.App. 109, 212 N.W.2d 756 (1973), the court reversed the entry of a judgment n.o.v. that had overturned a jury award in a case where plaintiff's hands had been amputated when he placed them into a crank-driven press and the safety device designed to pull his hands back from the jaws of the press failed to operate. Observing that 'the plaintiff had actual knowledge of the dangers of placing his hands in the point of operation of a press, the jury could reasonably have found that the defendant, in representing the safety device to be safe even with the operator's hands in the jaws of the press, vitiated any cautionary effect that that knowledge might otherwise have had,' the court determined that there was evidence that defendant was negligent in failing to warn plaintiff that hand tools should be used to remove material from the press. Id. at 114, 212 N.W.2d at 759. Accordingly, the jury's verdict should have been permitted to stand.

Careful consideration of Michigan precedents demonstrates that cases should not be removed from jury consideration unless the evidence demonstrates with utmost clarity either that defendant breached no duty owed to plaintiff or that plaintiff exercised absolutely no care for his own safety. Accordingly, we hold that it was not error for the district court to refuse to direct a verdict for defendant or to grant a judgment n.o.v.3

The final assignment of error that we will consider is the district court's failure to give instructions requested by appellant4 that concerned the standard to be applied in determining whether a defect in design caused the injury complained of and whether the defect, if it existed, was latent or patent. Although the requested instructions may have stated the relevant law with greater particularity than did the instructions given by the district court,5 the instructions that were given stated properly applicable legal principles and discussed the points emphaxized by appellant's requested instructions. Accordingly, there was no error committed when the district court refused to give the requested instructions.

Reversed and remanded for a new trial.