Kientz v. Carlton, 97

• Decision Date: 11 January 1957
• Docket Number: No. 97,97
• Citation: 245 N.C. 236,96 S.E.2d 14
• Parties: Jack KIENTZ v. Norton B. CARLTON and Sears, Roebuck and Company, a Corporation.
• Court: North Carolina Supreme Court

Page 14

96 S.E.2d 14

245 N.C. 236

Jack KIENTZ v. Norton B. CARLTON and Sears, Roebuck and Company, a Corporation.

No. 97.

Supreme Court of North Carolina.

Jan. 11, 1957.

James S. Howell and William J. Cocke, Asheville, for plaintiff, appellant.

McLean, Gudger, Elmore & Martin, Asheville, for defendant Carlton, appellee.

Harkins, Van Winkle, Walton & Buck, Asheville, for defendant Sears, Roebuck & Company, appellee.

BOBBITT, Justice.

The facts disclosed by the evidence impel the conclusion that the judgments of nonsuit were proper.

To recover damages for actionable negligence, plaintiff must establish (1) a legal duty, (2) a breach thereof, and (3) injury proximately caused by such breach. Ramsbottom v. Atlantic Coast Line R. Co., 138 N.C. 38, 41, 50 S.E. 448; Ptty v. Cranston Print Works Co., 243 N.C. 292, 90 S.E.2d 717.

Negligence is the basis of plaintiff's action against each defendant. Even so, the duty owed by each defendant to plaintiff is determined by the relationship subsisting between them. Pinnix v. Toomey, 242 N.C. 358, 87 S.E.2d 893; Petty v. Cranston Print Works, supra. Hence, it becomes necessary to consider the liability of each defendant separately; but, before doing so, it seems appropriate that we plaintiff was injured.

Plaintiff, who was employed by Carlton under circumstances narrated below, had been furnished the mower, a swinging scythe or blade and a pair of shears, all practically new and in good repair. He started the motor, pushed the mower up the driveway and reached a place referred to generally as being on an embankment. As he pushed the mower into tall grass, six to eight inches high, he felt the handle bars vibrate and noticed that the motor was slowing down. He testified: 'As I pushed the mower forward I thought that this shaking that it was doing would gradually clear up and i kept pushing further and further in hopes that it would before I fell. ' Again: 'As I pushed the mower into the grass it kept getting a little worse and it threw me. ' The gist of his testimony is that the vibration of the handle bars shook his hands loose; that he lost his balance; that he slipped and fell on his back, his feet flying forward; and that the mower went forward 'a little ways' ahead of him and the back came up three or four inches. Under these circumstances, his left foot went under the raised back portion of the mower and came in contact with the rotating blade.

Plaintiff testified that he didn't know what made the back end rise up. For his foot to reach the blade, it was necessary that it extend at least three inches under and beyond the casing. He testified: 'Not as long as I held on to it was there any chance for the machine to go up and do anything. If I had stood and held it the blades could never have been exposed at all. If I had stood still and held it or walked away from it or anything else there is no way in the world I could have gotten my foot under there. There is a guard there right down within two inches of the back of that machine that would have kept this foot out of it unless something did make it turn over.'

After his left foot was cut by the blade, plaintiff didn't recall anything that happened except that an unidentified person came up, used his belt as a tourniquet to stop the flow of blood; and then plaintiff was taken to the hospital. There was no evidence as to the exact place where plaintiff fell or as to the position of the mower after plaintiff had fallen.

As to Sears, the evidence most favorable to plaintiff, set forth in some detail below, tends to show that this mower was not constructed or equipped with specified safety features; that it was not approved and in general use for mowing on embankments; and that there were other power mowers, approved and in general use for mowing on embankments, having one or more of said specified safety features. By reason of this deficiency, so plaintiff alleges and contends, this mower was an inherently dangerous instrumentality. The alleged negligence of Searx, in substance, is that it offered for sale and sold such a mower, with knowledge or notice of its said condition. Plaintiff bases his right to recover on legal principles discussed, although not the basis of decision, in Rulane Gas Co. v. Montgomery Ward & Co., 231 N.C. 270, 56 S.E.2d 689. incidentally, it is noted that he cited case, and also Dalrymple v. Sinkoe, 230 N.C. 453, 53 S.E.2d 437, relate to gas water heaters; and in each case the alleged liability of the vendor was predicated upon alleged negligence in representing to the purchaser that it was safe to use liquid gas in the operation of such heater.

The evidence discloses that both the construction and operation of the mower were simple, readily observed and understood upon casual inspection. There is no evidence of defective materials or workmanship in its construction or that it was in disrepair or otherwise out of order. It was in fact what it purported to be, a comparatively small, light weight, power mower. There was no evidence that it was not suitable for use in mowing ordinary lawns. As to sears, there was no evidence that it was intended to be used for any other purpose.

In our opinion the evidence is insufficient to support a finding that this mower was an inherently dangerous instrumentality and that Sears should have reasonably foreseen that injurious consequences were probable if operated by a person who was not himself at fault. Annotations: 'Liability of seller of article not inherently dangerous to third person for injury or death due to dangerous condition of article sold.' 42 A.L.R. 1243; 60 A.L.R. 371.

The absence of the several alleged safety features was obvious, not latent. Injury alleged to have occurred because of the absence of a guard or stopping device on an 'onion topping' machine was involved in Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802, 803. The basis of decision, supported by the authorities cited, is epitomized in these excerpts from the opinion of Judge Fuld: 'The cases establish that the manufacturer of a machine or any other article, dangerous because of the way in which it functions, and patently so, owes to those who use it a duty merely to make it free from latent defects and concealed dangers. ' Again: '* * * since the duty owed by a manufacturer to remote users does not require him to guard against hazards apparent to the casual observer or to protect against injuries resulting from the user's own patently careless and improvident conduct, the complaint was properly dismissed. ' Campo v. scofield, supra, is discussed with approval in 15 Albany Law Review 196. Absent an express warranty, certainly no greater duty would rest upon the seller than upon the manufacturer of such a machine. While the recent case of Driver v. Snow, 245 N.C. 223, 95 S.E. 2d 519, was based on alleged implied warranty, the principles as stated by Higgins, J., would seem equally applicable when a remote user grounds his alleged action for negligence upon defects discoverable upon ordinary examination.

Even if ther ewere a breach of legal duty, this would impose 'responsibility for consequences which are probable, and which could reasonably have been foreseen, according to ordinary and usual experience, but not for consequences which are merely possible according to occasional experience. ' Brady v. southern R. Co., 222 N.C. 367, 373, 23 S.E.2d 334, 339. It is noteworthy that the evidence fails to disclose any incident, apart from that of plaintiff's injury, where the operator of a machine similarly constructed and equipped was injured under the same or similar circumstances or for that matter under any circumstances.

It is common knowledge that various models of power mowers differ in size, weight, design, safety devices, etc., and that new models constantly come into the market, and that purchasers select according to their choice and the price of the respective models. No law of which we are aware requires that a merchant sell only the latest models or those having specified safety features. Pontifex v. Sears, Roebuck & Co., 4 Cir., 226 F.2d 909.

As to Carlton, the evidence was sufficient to support the allegation that plaintiff was Carlton's employee, not an independent contractor. Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137; Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220; Bell v. Sawyer, 313 Mass. 250, 47 N.E.2d 1.

The oft-stated rules of the common law are summarized by Winborne, J. (now C. J.), in Baker v. Atlantic Coast Line R. Co., 232 N.C. 523, 61 S.E.2d 621, 625, as follows:

'When such relationship exists, the accepted and well settled rule of law is that the master owes to the servant the duty to exercise ordinary care to provide a reasonably safe place in which to do his work and reasonably safe machinery, implements and appliances with which to work. The master is not an insurer, however. Nor is it the absolute duty of the master to provide a reasonably safe place for the servant to work, or to furnish reasonably safe machinery, implements and appliances with which to work. He meets the requirements quirements of the law in the discharge of his duty if he exercises or uses ordinary care to provide for the servant such a place, or to furnish such machinery, implements and appliances as are approved and in general use in places of like kind, that is that degree of care which a man of ordinary prudence would exercise or use under like circumstances, having regard to his own safety, if he were providing for himself a place to work, or if he were furnishing for himself machinery, implements and appliances with which to work This rule of conduct of 'the ordinarily prudent man' measures accurately the duty of the master and fixes the limit of his responsibility to his servant. [Citations ommitted.]' (Italics added.)

The alleged failure of Carlton to exercise due care to provide plaintiff a reasonably safe place in...