Mobberly v. Sears, Roebuck & Co.

• Decision Date: 01 November 1965
• Parties: , 33 O.O.2d 188 MOBBERLY, Appellee, v. SEARS, ROEBUCK & CO., Appellant.
• Court: Ohio Court of Appeals

Page 126

4 Ohio App.2d 126

211 N.E.2d 839, 33 O.O.2d 188

MOBBERLY, Appellee, v. SEARS, ROEBUCK & CO., Appellant.

Court of Appeals of Ohio, Fifth District, Stark County.

Nov. 1, 1965.

Samuel Krugliak, Canton, and Curt E. Stern, Cleveland, for appellee.

Clyde H. Wright and D. W. Raley, Canton, for appellant.

RUTHERFORD, Presiding Judge.

This is an appeal on questions of law from a judgment rendered, upon a jury verdict, in favor of Albert Mobberly, the plaintiff, appellee herein, against Sears, Roebuck & Co., the defendant, appellant herein, in the sum of $150,000.

A 'David Bradley' two-wheel portable farm grain elevator manufactured by the Red Cross Manufacturing Corp. and put on the market by Sears as its own product was sold by Sears to Harry Rohrer in July 1955. Albert Mobberly was injured when it collapsed while being moved on August 8, 1958.

The elevator weighed approximately eight-hundred pounds. It was mounted on a two-wheel axle with struts extending V shape from the axle to the trough. There were four struts, two extending from the axle (one on each side) to the rear of the trough, and two others extending from the axle (one on each side) to the front of the trough. The two to the rear or hopper end were securely fastened to the trough. The two to the front or the discharge end of the trough were connected by a roller shaft on which the trough rested and could roll when being raised or lowered, but they were not fastened to the trough. Hooks were supplied to attach from the roller shaft between the struts to the flange of the elevator trough when transporting the elevator. (Query as to whether plaintiff in the exercise of ordinary care should have used the hooks or whether they would have been effective to prevent the collapse?) The elevator was raised or lowered by a cable running between the rear end front struts and attached to a shaft on which there was a ratchet and crank. The hopper end being much heavier than the open end of the trough, it would rest on the ground and, when the cable was shortened, the struts would draw closer together and raise the open end, vice versa when the cable was lengthened by being unwound, the V between the struts would widen and the open end of the trough would be lowered. There was a hook on the hopper end of the elevator for moving it by tractor, etc.

No notice was given by Sears as to the conditions under which the elevator would collapse.

Nothing broke, there was no defective part or material, and the elevator collapsed in a manner permitted by its design. It collapsed while the plaintiff was moving it from one part of the barn to another; in a highly elevated position, although it could have been lowered by the crank and cables which were a part of its mechanism to a position in which the collapse would not have occurred; while at plaintiff's direction a woman was riding in the elevator trough; while one person had raised and was pushing on the hopper end, and another person was pushing on the left wheel and plaintiff was pushing forward and upward on the right strut running from the wheel to the trough toward the hopper end; and when the trough continued to move forward in its highly elevated position after the wheels which had rolled against a door sill became stationary. It did not collapse until after the rear struts had moved up and forward in an arc to a point beyond where they had become perpendicular to the ground. At this point, and only after reaching this point, could it collapse because the trough was not fastened to the roller shaft at the top of the front struts. After the rear struts passed through the arc beyond a point perpendicular to the ground it collapsed very suddenly, pinning the plaintiff between the hopper end of the trough and the axle.

Liability in this case cannot be based upon breach of warranty, either express or implied, arising out of contract for there is no privity between the plaintiff, a remote user of the farm elevator, and the defendant, Sears, Roebuck & Company, appellant herein.

However, in Ohio liability need not be dependent upon privity of contract.

Early exceptions to the general rule that there must be privity of contract were: (1) One who negligently produces as article or substance which is inherently dangerous to life or health of mankind and which is intended to preserve, destroy or effect human life is amenable to an action by persons who suffer from such negligence; and (2) one who sells or delivers an article, which he knows to be imminently dangerous to life or limb, without notice of its harmful qualities, is liable to any person who suffers a reasonably-to-be-anticipated injury therefrom, whether there was any contractual relations between the parties or not.

The Supreme Court of Ohio in the case of Durham v. Warner Elevator Mfg. Co., 166 Ohio St. 31, at the bottom of page 36, 139 N.E.2d 10, has stated that exceptions to the general rule have been enlarged, citing MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas.1916C, 440, and stating that it was held therein that an article need not be inherently dangerous or imminently dangerous to constitute an exception to the general rule; that it is enough if it is such as to make it reasonably certain that life and limb will be endangered by its negligent preparation or construction; and, where a manufacturer places a defective wheel on a motor vehicle, the ordinary and customary use of which may entail an undue or unreasonable risk of harm, a remote user who purchases the motor vehicle from a dealer and is injured from the wheel's defective action based on negligence directly against conditions may successfully maintain an the manufacturer, irrespective of any privity of contract between them. Also, see the case of Witherspoon v. Haft, 157 Ohio St. 474, 106 N.E.2d 296.

It appears to us that an article need not be inherently dangerous, if it is imminently dangerous, and that the extension has been to permit an action based upon negligence to be brought, in the absence of privity of contract, not only when there is actual knowledge, but also if under the rules set forth the manufacturer has become chargeable with constructive knowledge of such danger.

The manufacturer and seller of farm equipment is not an insurer and he is not under any duty to make an accident-proof or fool-proof piece of equipment. Neither is he liable merely because injuries are sustained by users of such implements, there being no presumption of negligence from the mere fact of injury. The mere fact that danger may possibly result from the character of the equipment sold is insufficient to make the manufacturer liable for injuries; it must appear that injury would probably result. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, paragraph two of the syllabus.

After a review of the cases, it is our finding that, where a manufacturer designs a piece of equipment the nature of which is such as to make it reasonably certain that life and limb will be endangered by its use for a purpose intended if it is negligently designed, the liability of the manufacturer for negligence in design, if danger was to be reasonably expected therefrom, is such that if, after construction and sale, negligence in design is the proximate cause of injury to a blameless user who is lawfully using such equipment, such injured user has a right of action directly against the manufacturer, irrespective of the lack of privity of contract between them.

The manufacturer of a portable farm grain elevator, the nature of which is such as to make it probable that personal injury will result from its use for a purpose intended if it is negligently designed, has a duty to exercise ordinary and reasonable care to design such elevator in a manner that it does not involve an undue or unreasonable risk of injury to a lawful user through the reasonably-foreseeable action of such user while using the equipment for any of its intended uses or, if such a defect does exist of which he has knowledge or by the exercise of ordinary care should have knowledge, to give warning thereof.

The issue of defendant's negligence is dependent first upon whether the manufacturer performed the duty owed as to design of the elevator. If the manufacturer did perform the duty owed in designing the equipment, no notice was required. If the manufacturer was negligent in designing the equipment and the circumstances were such that there was a duty to give notice, it was undisputed that no notice was given.

The user of the equipment has a duty to use ordinary care as to the manner in which he uses it and for his own safety.

If a company puts out in its own name and as its own product machinery which is manufactured by another, it is subject to the same liability as though it were its manufacturer.

Construing the evidence most strongly in favor of the party against whom a motion for verdict or judgment as a matter of law is made, could reasonable minds reach more than one conclusion upon the following questions: Was the nature of the elevator such as to make it reasonably certain that personal injury would result to a blameless person from its lawful use for a purpose intended, if it was negligently designed? Did the manufacturer use ordinary and reasonable care to design the elevator so that it would not involve undue risk to one using it for an intended purpose? Were the actions of the plaintiff, within the reasonable projection of events, to be anticipated during the operation of moving the portable elevator? Was the plaintiff using ordinary care as to the manner in which he was moving the elevator and for his own safety?

After careful consideration of the record and considering the evidence most strongly in favor of the party against whom the judgment might be awarded, we have reached the conclusion that reasonable minds could come to more than one conclusion upon the issues of (1)...