Abraham v. Johnson

• Decision Date: 07 March 1979
• Docket Number: Nos. 10301,10302,s. 10301
• Citation: 579 S.W.2d 734
• Parties: Roberta ABRAHAM, Plaintiff-Appellant-Respondent, v. Ernie JOHNSON and Wayhaven, Inc., a corporation, Defendants-Appellants-Respondents.
• Court: Missouri Court of Appeals

Page 734

579 S.W.2d 734

Roberta ABRAHAM, Plaintiff-Appellant-Respondent, v. Ernie JOHNSON and Wayhaven, Inc., a corporation Defendants-Appellants-Respondents.

Nos. 10301, 10302.

Missouri Court of Appeals, Southern District.

March 7, 1979.

Motion for Rehearing or to Transfer Denied March 30, 1979.

Application to Transfer Denied May 17, 1979.

William H. McDonald, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for plaintiff-appellant-respondent.

E. C. Curtis, Lincoln J. Knauer, Jr., Farrington, Curtis, Knauer & Hart, Springfield, for defendants-appellants-respondents.

FLANIGAN, Chief Judge.

Plaintiff Roberta Abraham brought this action for injuries she sustained when her face and arm were struck by a television tray which had been thrown through the air by a mowing machine operated by defendant Ernie Johnson. The parties stipulated that Johnson, at the time of the occurrence, was acting in the course of his employment for defendant Wayhaven, Inc. Plaintiff received a jury verdict in the amount of $4,500 and judgment was entered thereon. Each side has appealed.

On their appeal defendants make two contentions. The first is that plaintiff failed to make a submissible case in that there was no showing of negligence on the part of defendant Johnson in the operation of the mower and that the trial court erred in denying, at the close of all the evidence, defendants' motion for directed verdict. Defendants' second contention is that plaintiff's verdict-directing instruction was erroneous. On her appeal plaintiff contends that the trial court erred in giving a withdrawal instruction concerning her damages.

In considering defendants' first contention this court must give plaintiff the benefit of all favorable evidence and every reasonable inference to be drawn therefrom. Defendants' evidence is to be disregarded unless it aids the plaintiff's case. Carter v. Boys' Club of Greater Kansas City, 552 S.W.2d 327, 329(2) (Mo.App.1977). A cause may not be withdrawn from the jury unless the facts in evidence and the reasonable inferences derivable therefrom "are so strongly against the plaintiff as to leave no room for reasonable minds to differ." Hastings v. Coppage, 411 S.W.2d 232, 235(2) (Mo.1967).

The land on which the events took place was owned by defendant Wayhaven. Twelve days before the accident plaintiff had moved into a house located on defendant's premises pursuant to an arrangement whereby she would "fix it up" in return for one month's free rent and commence paying rent thereafter.

The incident occurred around 1 p.m. on June 27, 1974. Present at the scene were plaintiff, defendant Johnson and Donald Allcorn. At the time she was struck by the television tray plaintiff was standing on the front porch of the house which faced east. She was talking with Allcorn who was standing about eight feet from her. Prior to the accident Allcorn had mowed a portion of the yard. The machine which Allcorn used was a "little" power mower.

North of the house was a "weed patch" about 12 feet wide, from north to south and 15 feet long, from east to west. The weeds were approximately four feet high, too high for Allcorn's mower.

The mowing machine, or brush hog, operated by Johnson was "a rotary blade type, two blades, one on each side." The brush hog was pulled by a tractor and its swath was approximately seven feet wide. The tractor was not "enclosed." Johnson, as the operator, "sat up high above the tractor so that I can see over the front of the hood. I can see the area the mower will be going over." Johnson had operated the brush hog, or at least one of its type, for five years. Earlier in the day Johnson had been mowing a field east of the house but interrupted his work there for the purpose of mowing the weed patch and also some vines which were next to the north side of the house.

Johnson testified that he knew that the brush hog "will pick up pop cans and throw them out the back end." A space approximately two and one-half feet wide at the rear of the brush hog was unguarded. Long before the accident Johnson "had put chains over the front end" of the brush hog "because sometimes when I was mowing I would hit a rock and it would bounce up and hit the front tire and come right back on me." Additionally, at Johnson's request, his employer made a screen "to protect my back, to keep the mower from throwing things at the operator." Johnson also testified that as he mowed, objects would hit the chains. Before mowing the weed patch Johnson had waved Allcorn and one of plaintiff's children "clear out of the road because I didn't want anybody close to the brush hog when I was brush hogging. I don't like to be brush hogging when people are around."

One of defendants' witnesses testified that "the brush hog is dangerous" and that "it is dangerous to operate brush hogs in the immediate vicinity of people . . . Operating a brush hog you look ahead to try to avoid stumps and rocks."

During the course of his mowing on the north side of the house Johnson made several "circles" with the tractor-mower unit. It is a clear inference that the unit was highly maneuverable. Asked by plaintiff's counsel if he could see an object if he "might be going to hit it with the mower," Johnson, referring to "something like that or a rock," replied, "I can dodge."

Having completed the mowing of the weed patch and the vines, Johnson drove the tractor mower unit eastwardly with the intention of resuming his work in the east field. He did not "disengage" the power to the brush hog, and the blades of the latter continued to move. When the brush hog reached a point north of the porch, and approximately 40 feet from where plaintiff was standing, its moving blade or blades struck the television tray, cutting it in two and hurling both pieces through the air toward the plaintiff. The two pieces, both of which struck the plaintiff, were introduced in evidence in the trial court and are exhibits here. Each piece is grossly contorted, giving mute but cogent evidence of the violence of the force which projected it. Before its severance the television tray appears to have been approximately 14 inches long and 18 inches wide.

Johnson said he did not see the television tray before "I hit it." Allcorn, who had seen the tray before the accident, testified that it "was lying out in the open" and "was in plain sight." The tray was not covered by the newly mowed weeds. Allcorn said that the weed patch had "trash and stuff in it" and that the tray was lying at or near the edge of the weed patch Johnson had mowed.

On cross-examination by defendants' counsel plaintiff testified to some familiarity with the characteristics of brush hogs. She said that if she had known the tray was there, she would have picked it up because she realized that if a brush hog ran over the tray it might "very well pick it up and throw it with force."

In fine the evidence justified the triers of the facts in finding that Johnson was aware of the dangerous character of the brush hog and its proclivity to throw objects; that he failed to see the television tray in the path of the tractor although the tray was in plain sight; that he had the means to avoid hitting the tray and would have done so if he had seen it. Johnson admitted that he knew two or three people were on or near the porch as he proceeded eastwardly and "shortly before" he struck the tray.

The plaintiff did not know that the tray was in the yard. Defendants do not claim that she was guilty of contributory negligence as a matter of law. The trial court, at defendants' request, did give an instruction on contributory negligence but the jury resolved that issue, if such it was, in favor of the plaintiff.

Neither side has cited any Missouri case which is factually similar. Cases from other jurisdictions support the view that where the operator of a power mower has knowledge, actual or constructive, that under certain circumstances objects capable of inflicting injury may be thrown by the mower, he may be found negligent in his manner of operation of the mower and liable for the resultant damages. Although all of the authorities recognize that basic principle, varying factual situations have produced holdings that the evidence was sufficient, Glenn v. City of Raleigh, 246 N.C. 469, 98 S.E.2d 913 (1957); Motter v. Snell, 250 Iowa 1247, 95 N.W.2d 735, 98 N.W.2d 746 (1959); Loonan Lumber Co. v. Wannamaker, 81 S.D. 51, 131 N.W.2d 78 (1964); Beaver v. Costin, 352 Mass. 624, 227 N.E.2d 344 (1967), or insufficient, Stayton v. Funkhouser, 148 Ind.App. 75, 263 N.E.2d 764 (1970); Embry v. Henderson, 511 S.W.2d 218 (Ky.App.1974), to support findings of actionable negligence on the part of the mowing machine operator. See Anno. 25 A.L.R.3d 1314, 1316.

In Glenn plaintiff was injured by a rock, three inches in diameter, which was thrown 60 feet by the mower. The defendant was mowing in a "very rocky area." In Motter an evenly divided court affirmed the judgment for the plaintiff. The evidence did not identify the object which struck the plaintiff, but defendant's yard had an unusual amount of brick chips in...