Eyre v. McDonough Power Equipment, Inc., 83-4731

• Decision Date: 18 March 1985
• Docket Number: No. 83-4731,83-4731
• Citation: 755 F.2d 416
• Parties: Margaret EYRE, Individually and as the Natural Tutrix of the minor child, Michael L. Eyre, Plaintiff-Appellant, and South Carolina Insurance Company, Intervenor-Appellant, v. McDONOUGH POWER EQUIPMENT, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 416

755 F.2d 416

Margaret EYRE, Individually and as the Natural Tutrix of the minor child, Michael L. Eyre, Plaintiff-Appellant, and South Carolina Insurance Company, Intervenor-Appellant, v. McDONOUGH POWER EQUIPMENT, INC., Defendant-Appellee.

No. 83-4731.

United States Court of Appeals, Fifth Circuit.

March 18, 1985.

Davis & Stone, James D. Davis, H. Dillon Murchison, Alexandria, La., Alfred Weisbrod, Troy, Ohio, for plaintiff-appellant.

Steven W. Cook, Alexandria, La., for intervenor-appellant S.C. Ins. Co.

Provosty, Sadler & deLaunay, William H. deLaunay, Jr., Ronald J. Fiorenza, Alexandria, La., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before GEE, REAVLEY, and RANDALL, Circuit Judges.

GEE, Circuit Judge:

This appeal in a Louisiana diversity case requires us to determine whether the evidence presented at trial was of such a kind and character as to require that the plaintiffs' verdict rendered by the jury be left undisturbed, or whether the trial judge's actions in granting judgment non obstante for the defendant, or in the alternative a new trial, were correct. We reverse the judgment but affirm the granting of new trial.

Facts

The action is one in product liability and negligence for claimed design defects and failures to warn of dangerous qualities of a rotary power mower. There was only one witness to the injury, a child then nine years of age, ¹ and the main body of the record consists of the conflicting views of five expert witnesses.

Michael Eyre was visiting his country cousin in the spring of 1979 when he was permitted to participate in the family chores by operating a 1978 model power riding mower manufactured by the defendant. His aunt, who had not read the operating manual furnished by defendant or its warnings, ² instructed him cursorily in the operation of the mower, showing him the brake and clutch and the ignition key; watched him mow one circuit of the lawn; and went about other business. Some few minutes later, Michael was on his way to the emergency room with a mangled foot.

Michael's testimony about how the accident occurred was, taken with the other evidence, in two respects implausible to a degree approaching the incredible. ³ As Michael recalled his injury, he had made one circuit of the dew-wet, flat lawn in first gear--at a speed, as was undisputed, of about one and one-half miles per hour, a slow walk--when he came to a clothesline pole placed six or seven feet from a barbed wire fence. Intending to avoid the pole and reverse his course, he veered left around it and sharply back to the right. When he did so, he testified, the front end of the mower began to buck or hop up and down and the mower slid left several feet into the barbed wire. As we shall see, neither the asserted bucking nor the extreme lateral slide finds explanation or support in the testimony of the experts as likely or even as possible.

When his left hand encountered the wire, Michael bailed off the mower to the right, leaving it running at full bore. Sadly, his foot slipped under the machine and was injured. He hopped to the house, leaving the mower tangled in the wire fence and still running. After protracted medical attention, Michael's foot is usable without serious discomfort, but his big toe and much of his instep were lost. The mower remains in service with his aunt's family, without subsequent incident.

Discussion

Plaintiffs' theories of recovery were several: the absence of a so-called "dead man" control from the mower; a claimed dynamic instability in steering it, resulting from a lack of weight located forward over the steering wheels; an absence of adequate warning of the machine's dangerous aspects; and a failure properly to test the machine to discover these asserted defects.

We are unable to see any substance in the latter two. Logically, if the machine was so seriously defective as to create liability merely for marketing it, the failure to test adequately adds nothing; if not, the same is true. And again, in logic, we are unable to envision the causal significance of the adequacy or inadequacy of warnings when those that were given were not read; presumably the most adequate ones would likewise have been ignored. Appellants cite us to no Louisiana authority to the contrary of either logical proposition, and we have found none.

As for the claimed steering instability, little supports it save Michael's own testimony of the machine's bucking and of its sliding several feet in the turn he sought to make, plus the naked conclusion of an expert, a Dr. Wright, that the machine was defectively unstable. The test run by plaintiffs' expert, however, on which he based his conclusion, entirely fails to mesh with Michael's testimony or to support the conclusion that he reached. Tested in first gear on dry grass, and thrown into as tight a turn as possible, the machine described a circle of 11'3". Tested twice on wet grass, one turn measured 11'5", another 11'8". Nothing was said by the expert of any tendency by the mower to hop or buck during these maneuvers; had any manifested itself, we think it fair to presume that he would have said so. These miniscule differences in turning radius do indeed indicate a slight tendency to slide in a tight turn on wet grass, but they offer no support whatever for Michael's claim of an uncontrolled bucking or hopping and a slide of several feet. Nor, we conclude, do they furnish any basis for the expert's opinion that the machine suffered from steering instability on flat, wet grass. To be sure, another basis for his conclusion was his observation that only about thirty percent of the machine's weight was located over its front wheels, but his own test seems to us to demonstrate that despite this circumstance the machine was not prone to slide significantly.

So far, then, it appears that the judgment of the trial court was in compliance with the law of our Circuit. Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969), sets forth our standard for granting judgment notwithstanding the verdict:

On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence--not just that evidence which supports the nonmover's case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

411 F.2d at 374-375 (footnote omitted). Exercising all deference to the jury's function, we are unable to see that an issue was made by substantial...