Bower v. Corbell

• Decision Date: 26 October 1965
• Docket Number: No. 40700,40700
• Citation: 408 P.2d 307
• Court: Oklahoma Supreme Court
• Parties: Paul BOWER, d/b/a Bower Implement Company, Plaintiff in Error, v. Jessie CORBELL, Defendant in Error.

Page 307

408 P.2d 307

1965 OK 163

Paul BOWER, d/b/a Bower Implement Company, Plaintiff in Error, v. Jessie CORBELL, Defendant in Error.

No. 40700.

Supreme Court of Oklahoma.

Oct. 26, 1965.

Syllabus by the Court

1. Where a vendor supplies a purchaser with a device or instrumentality, and in exercise of ordinary care knows, or should know, if same is defective it will be dangerous to all who come in contact therewith during use for the purpose for which intended, the vendor owes a duty to ascertain the condition of the instrumentality by exercising reasonable care to see that it is safe for the use for which intended. A vendor who fails to exercise ordinary care to ascertain the true condition and safety of the instrumentality and chooses to sell without notice or warning of the dangerous characteristics and dangers inherent in use thereof is liable for injuries proximately caused by use of the instrumentality.

2. The essential elements of a cause of action based on negligence may be inferred from all the facts and circumstances, and where the circumstances are such as to remove the case from the realm of conjecture and place it within the sphere of legitimate and rational inferences from established facts, a prima facie case is made.

3. Where evidence showed setscrews designed to hold shaft of power-driven saw vibrated loose permitting circular blade to turn from fixed position, causing saw to jump sideways and injure plaintiff, reason saw jumped was determinable by jury as matter within their knowledge and understanding as persons of ordinary intelligence and experience.

Appeal from District Court of Muskogee County; C. F. Bliss, Jr., Judge.

Negligence action for damages for personal injuries incurred by plaintiff as result of being struck by power-driven circular saw manufactured by third person and purchased from defendant. Judgment was rendered for plaintiff upon a jury verdict and defendant retailer appeals. Affirmed.

Hudson, Hudson, Wheaton, Kyle & Brett, Tulsa, for plaintiff in error.

Norman & Wheeler, and Bonds, Matthews & Mason, Muskogee, for defendant in error.

BERRY, Justice.

Plaintiff sued to recover damages for personal injuries. The action was based upon the alleged negligence of defendant a retail implement dealer, who sold the machine involved to plaintiff's husband. The issues were heard and determined by a jury in plaintiff's favor and judgment rendered against defendant who brings this appeal.

The uncontroverted facts disclose that on December 7, 1959, plaintiff's husband purchased an MBS power saw from defendant. This saw, mounted on bicycle-type wheels, was powered by a 5 3/4 horsepower gasoline engine. Power was transmitted to a 20-inch circular blade attached to a rigid shaft at the front of the machine by means of a belt and pulley. The mechanical design was such the blade could be so positioned as to allow the saw to be operated either horizontally or vertically. The saw was operated from two handle bars at the rear, which formed part of the frame, upon which the controls were mounted. The position of the blade presumably would be maintained by means of setscrews intended to hold the shaft in the desired position. When the setscrews were loosened the shaft would turn, thus permitting the saw blade to change position.

The morning following purchase plaintiff's husband, assisted by one Stephens, operated the saw for approximately one hour with the blade in horizontal position, felling trees which varied in diameter from 2-6 inches. The limbs then were trimmed in preparation for the logs, or poles, to be sawed into firewood. After noon they returned to work accompanied by plaintiff and Stephens' wife. Plaintiff's husband was operating the saw with the blade in a vertical position cutting the poles into stove lengths, as Stephens fed the poles into the saw at right angles. This was accomplished by pushing the logs across another log laid upon the ground, which kept the saw above the ground and allowed the sawed lengths to roll away from the saw.

Plaintiff and Stephens' wife had been working some distance away piling brush, but plaintiff returned to where the men were working, approaching the saw from the right side. Plaintiff then went a slight distance in front of and to the right of the saw and stooped over to pick up a stick of wood. While in this position, the saw 'screamed' and she felt it cut her body. The blade struck plaintiff, cutting her head and back and causing severe and permanent injuries, the nature and extent of which are not involved herein. After the accident the setscrews were found to have vibrated loose, allowing the saw blade to tilt some 5-10 degrees to the right of the vertical position in which it was being operated prior to the accident.

Initially the action was against both the manufacturer and retailer, but was dismissed without prejudice as to the manufacturer prior to trial. The petition alleged negligence on part of the manufacturer in failing to use due care in construction, inspection and testing of the machine. Negligence was charged against defendant in that, having assembled the machine, at the time of sale and delivery the saw was in a defective condition and dangerous both to the operator and persons in the vicinity of the operation, which facts could have been ascertained by proper inspection which defendant had neglected to make. Further, that the saw was defective in that the setscrews, which held the shaft supporting the blade, had no recess in which to fit, making it impossible to tighten the screws sufficiently to prevent the shaft from turning when the saw was in operation. Plaintiff alleged her injuries resulted from her husband's use of the saw, in that when attempting to cut a log the saw, because of defective construction, turned on its side, began vibrating violently and clawed its way over the log and struck plaintiff, causing injury solely by reason of negligent construction and inspection of the power saw.

Defendant's answer alleged plaintiff's contributory negligence, concurrent negligence of plaintiff's husband in failing to use ordinary care in use of the equipment, failure to inspect the saw prior to attempting to use same and failure to make certain the saw was safe prior to permitting his wife to work in close proximity. Further, if the saw were defective iun any particular, same was a latent defect which defendant could not have discovered by exercise of ordinary care; hazards coincident to use of the saw should have been apparent to person of ordinary intelligence so that plaintiff's conduct amounted to assumption of risk. To these allegations plaintiff replied by general denial.

The evidence, including the factual matters stated above, was not in serious conflict. When the accident occurred the saw 'jumped' sideways several feet, struck plaintiff and landed bottom side up. When running, the saw was too powerful to hold, and vibrates so that it shakes the operator. The seller did not advise the purchaser about the setscrews, and that this was the only means of holding the shaft in place, but only advised the saw was ready to go.

Some time after the accident Stephens bought the saw from Corbell. When he operated the saw he carried a wrench and tightened the setscrews about every 15 minutes. If this were not done the screws became loose and the blade would turn because the saw vibrates all the time it is in operation. Stephens, who was helping saw wood at the time of the accident did not hear the saw 'scream', but did see the saw jump sideways. After buying the saw he never used it as much as an hour without checking. Sometimes the screws did not need tightening but at other times this would be needed. On one occasion a setscrew was gone. Prior to the accident he did not know that vibration of the saw would shake the setscrews loose and thus allow the blade to turn. He also testified the saw would 'buck' when in use and, although it had never gotten away from him, he learned to hold it with a very tight grip.

A witness experienced with gasolinepowered machines of this type testified he had examined the saw; the setscrew were intended to keep the shaft locked in position and prevent the blade from turning; if the setscrews became loose the shaft and blade could turn a complete circle; the vibration would cause the setscrews to become loose within 15-30 minutes. The witness stated in his opinion the setscrews were not recessed into the shaft, because he examined the machine before trial and was able to twist the shaft which could not be done if they were recessed.

Defendant's evidence concerning the sale coincided with the purchaser's (Corbell) testimony, except for testimony that before sale the machine was started, he was shown the service points and how to operate the machine, and the saw was engaged in demonstration. There also was testimony that a pamphlet and booklet describing servicing of the engine and the manufacturer's warranty probably were tied on the machine. The purchaser's testimony was that the machine neither was demonstrated nor the means of operation shown him at the time of purchase, but that he relied upon what he was told by the seller.

Defendant's shop foreman testified he assembled these saws on a commission basis. The engine was bolted to the frame and he installed the belt and blade on the saw, then checked all bolts and the setscrews to see if same were tight. The machine would be started, allowed to run a few minutes, then shut down and checked over again. Following this the foreman affixed a decal to the saw 'Sale and Services by Bower Implement Company.' The witness had assembled approximately 150 machines over the years and never had known of any difficulty with the setscrews before this instance.

Defendant's contentions on appeal are based upon the premise the evidence did not establish failure to recess the setscrews into the shaft would be a defect; that, even assuming...