Lynch v. International Harvester Co., 579.
Decision Date | 18 July 1932 |
Docket Number | No. 579.,579. |
Citation | 60 F.2d 223 |
Parties | LYNCH v. INTERNATIONAL HARVESTER CO. OF AMERICA. |
Court | U.S. Court of Appeals — Tenth Circuit |
Sam P. Ridings, of Medford, Okl., and C. F. Dyer, of Enid, Okl. (Dyer, Smith & Crowley, of Enid, Okl., and Ridings & Drennan, of Medford, Okl., on the brief), for appellant.
Forest D. Siefkin, of Chicago, Ill. (William S. Elliott, of Chicago, Ill., and Oliver C. Black, of Oklahoma City, Okl., on the brief), for appellee.
Before LEWIS and McDERMOTT, Circuit Judges, and POLLOCK, District Judge.
Appellant, plaintiff below, sued for damages on account of injury which resulted in the loss of his leg. The injury occurred while he was operating a machine made and sold by appellee and designed for reaping and threshing small grain. The complaint alleges that the operator was required at times to go upon the top of the machine to give attention to its parts and their operation. On the top there was an iron covering over a rapidly revolving cylinder with projecting teeth or spikes. Appellant stepped on this covering which gave way or sagged under his weight causing his foot and lower leg to be caught and mangled by the cylinder. Early in 1924, appellee shipped the machine to its agent in Oklahoma. In June, 1924, the agent sold it to one Connery. Later Connery sold it to R. R. Smith Hardware Company, and in June, 1928, the hardware company sold it to appellant. The injury to appellant occurred on June 29, 1929, five years after the sale to Connery. This appeal is from an order sustaining demurrer to the complaint.
Counsel for appellant say in their brief that Huset v. J. I. Case Threshing Machine Company (C. C. A.) 120 F. 865, 867, 61 L. R. A. 303, is without question the most important, full and complete case reported covering the proposition involved in the case at bar. Also, they say, "* * * By an examination of the petition in the case at bar it will be observed that the petition brings the case squarely within the exception last above quoted" (third exception noted in the Huset Case). Let us see. The late Judge Walter H. Sanborn spoke for the court in that case. After stating reasons therefor, he concluded:
"The general rule is that a contractor, manufacturer, or vendor is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture, or sale of the articles he handles."
But then he said there are three exceptions to that rule, as well settled and established as the rule itself:
Convincing authority is cited in support of the general rule stated in that case and the exceptions, and to each is added the independent reasoning of that able court. As to the third exception noted in that case, it cannot be doubted from the authorities cited, as well as from the opinion in that case, that knowledge of the vendor at the time of sale that the machine sold was imminently dangerous to life or limb is a necessary element to liability. Indeed, there could be no actionable negligence on the part of the seller without such knowledge, because to constitute liability the machine must then be imminently dangerous, known by the seller to be so, sold without giving notice to the buyer of the danger, and the resulting injury one that could be reasonably anticipated by the seller. In the Huset...
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...neglect of the manufacturer or supplier, and do so at a time when he cannot recall forgotten events. Lynch v. International Harvester Co. of America, 10 Cir., 60 F.2d 223;Gorman v. Murphy Diesel Co., Del. Super., 29 A.2d 145;Auld v. Sears, Roebuck & Co., 288 N.Y. 515, 41 N.E.2d 927;Curtin v......
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