Ilnicki v. Montgomery Ward Company

• Citation: 371 F.2d 195
• Decision Date: 11 January 1967
• Docket Number: No. 15741.,15741.
• Parties: Wasyl ILNICKI, Plaintiff-Appellee, v. MONTGOMERY WARD COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

371 F.2d 195 (1966)

Wasyl ILNICKI, Plaintiff-Appellee, v. MONTGOMERY WARD COMPANY, Defendant-Appellant.

No. 15741.

United States Court of Appeals Seventh Circuit.

December 1, 1966.

Rehearing Denied January 11, 1967.

Arthur A. May, Thomas H. Singer, South Bend, Ind., for appellant.

David L. Matthews, South Bend, Ind., Charles J. LaSata, Niles, Mich., for appellee.

Before HASTINGS, Chief Judge, MAJOR, Senior Circuit Judge, and SCHNACKENBERG, Circuit Judge.

MAJOR, Senior Circuit Judge.

This diversity action was instituted by plaintiff to recover damages for personal injuries sustained in the course of operating a rotary power lawn mower purchased from defendant on or about August 6, 1962.

Plaintiff's complaint consisted of four counts, the first based upon negligence, the second upon express warranty, the third upon implied warranty and the fourth upon the theory of strict liability. In this count it was alleged that defendant sold plaintiff a lawn mower which was in a defective condition or unreasonably dangerous. Defendant by answer denied liability under each and all of the counts and asserted certain affirmative defenses which, in the present posture of the case, appear to be immaterial.

The case was tried to a jury, and at the conclusion of plaintiff's case the court directed a verdict in favor of defendant on the second count (express warranty). The jury found in favor of defendant on the first count (negligence), as well as on the third count (implied warranty). It found in favor of plaintiff on the fourth count (strict liability). Upon this verdict the court rendered judgment in favor of plaintiff, from which defendant appeals. Subsequent to the rendition of such judgment, the court denied the usual post-trial motions interposed by defendant.

The sole contentions advanced here as grounds for reversal are: (1) the evidence was not sufficient to sustain the jury's finding that there was a defect in the power mower which proximately caused plaintiff's injuries; (2) the court erred in denying the motion for a new trial on defendant's contention that the verdict was inconsistent, in violation of the court's instructions and contrary to law, and (3) the court erred in its refusal to give defendant's proffered instruction No. 12.

Defendant cites two recent decisions of this court, Hurley v. Beech Aircraft Corp., 7 Cir., 355 F.2d 517, and Dagley v. Armstrong Rubber Co., 7 Cir., 344 F.2d 245, in support of its contention that under the theory of strict liability plaintiff must prove that the product contained a defect which was the proximate cause of his injury. The contention is not relevant for the reason that the instant case was pleaded and tried on that theory. Count 4 alleged that the lawn mower was in a defective condition or unreasonably dangerous, and the court instructed the jury, "* * * under this legal paragraph 4 of plaintiff's complaint, the burden is upon the plaintiff to prove by a fair preponderance of all of the evidence, that the lawn mower in question sold by the defendant to the plaintiff was in a defective condition and by reason thereof unreasonably dangerous to the plaintiff, and as a proximate result of which the plaintiff suffered his alleged injuries."

In response to the contention that the evidence was not sufficient to sustain the jury finding that there was a defect in the mower which proximately caused plaintiff's injuries, it is well to keep in mind that here the evidence must be considered in the light most favorable to plaintiff. Also, the rule as often reiterated is, "It is not for this court to decide whether we, if the trier of the facts, would reach the same or a different result from that reached by the jury upon the factual issue of liability. Our inquiry extends no further than to determine if the evidence was such as to present a jury issue." Gahimer v. Virginia-Carolina Chemical Corp., 7 Cir., 241 F.2d 836, 843.

Thus, for our purpose, a brief statement of the facts will suffice. Plaintiff had previously owned and operated a power lawn mower which was started by the use of a recoil starter or, as plaintiff described, one started with a "string." In the first part of August, 1962, he purchased from defendant the same type of rotary power lawn mower, except that it started with an impulse or spring starter which was wound by a crank. A button was located on the left side of the mower and, when turned to the left, released the spring which started the mower. The day after purchasing the mower, plaintiff started it and found it was cutting the grass too high. He turned off the motor so that he could lower the blades, which could be done only by lowering the wheels. After he stopped the mower, he cranked the spring starter two or three times, lowered the left rear wheel and started to lower the left front wheel. When he placed his left hand under the mower to lift it upon its side, for some reason not known to plaintiff the blades suddenly rotated, inflicting the injuries of which he complains.

Plaintiff was of Polish descent, had been in this country for some sixteen years and had difficulty in understanding or speaking the English language. He purchased the mower from a Mr. Rice, an employee of defendant. He received no oral warning or instruction booklet which ordinarily went with a mower, and particularly no instructions regarding the raising and lowering of the wheels. He testified that he was not told and did not know that he should not wind the spring starter before lowering the wheels.

Some of the defects suggested by plaintiff were the failure to have (1) a remote control starting switch on the handle, (2) a protective housing...