Motter v. Snell, 49636

• Decision Date: 08 April 1959
• Docket Number: No. 49636,49636
• Citation: 250 Iowa 1247,95 N.W.2d 735
• Parties: Nile Eldred MOTTER, by Henry Motter, his father and next friend, Plaintiff-Appellee, v. Charlotte S. SNELL et al., Defendant-Appellant.
• Court: Iowa Supreme Court

Page 735

95 N.W.2d 735

250 Iowa 1247

Nile Eldred MOTTER, by Henry Motter, his father and next friend, Plaintiff-Appellee, v. Charlotte S. SNELL et al., Defendant-Appellant.

No. 49636.

Supreme Court of Iowa.

April 8, 1959.

Rehearing Granted June 12, 1959.

Westfall, Laird & Burington, Mason City, for appellant.

Warren L. DeVries and Mason & Stone, Mason City, for appellee.

THORNTON, Justice.

This is an action commenced by the father and next friend of the minor. The minor will be referred to as plaintiff hereafter. The accident which resulted in this litigation occurred in the back yard of defendant's home in Mason City, Iowa, Monday, June 6, 1955. Defendant, Charlotte S. Snell, is now the sole defendant in the case. The trial court sustained motion to dismiss as to the other defendants. Plaintiff sustained the injury to his eye while standing on the sidewalk in the back yard of the defendant's home watching defendant's son, Lee Snell, 12 years of age at the time of the accident, mow the lawn with a rotary type power mower.

Defendant made proper motions in the trial court and urges for reversal here, three propositions (1) insufficiency of the evidence to submit the negligence of the defendant to the jury. (2) error in the reception of evidence as to the custom and usage not cured by instructions to disregard and, (3) error in submitting impairment of earning capacity.

The first proposition requires us to examine the evidence most favorable to plaintiff to determine whether or not there is sufficient evidence to submit the case to the jury.

The jury was entitled to find the plaintiff was a boy 11 years of age and on the morning of the tragic accident standing on the sidewalk in the rear of defendant's home watching the defendant's father and then her son, Lee Snell, a boy 12 years old operate a rotary type power mower borrowed by defendant from her father. The rotary type power mower was 22 inches wide, with a steel blade twenty-one inches long, two inches wide and 1/16 of an inch thick. The blade is enclosed in a metal frame with four wheels. On top of the frame is a 2 1/2 horse power gasoline motor. The blade is driven directly off of the shaft from the motor. The blade turns clockwise when you look down on it and there is an opening at the left that throws the grass out to the left of the operator and the mower. This motor has an idling speed of 500 revolutions per minute, a maximum speed of 3600 revolutions per minute and a normal operating speed of 2600 revolutions per minute. Defendant was in control and direction of her son in the mowing operation and had full knowledge of the presence of plaintiff and his position in the yard in relation to the mower. Plaintiff was a playmate of defendant's son, Lee Snell, and a frequent visitor in defendant's yard.

The attending eye, ear, nose and throat specialist that cared for the boy and removed the eye, testified that plaintiff was wearing glasses (only a period of two weeks before the accident) with a case hardened lens. Such glass is less inclined to shatter. In his opinion the object that caused the injury to his eye was propelled with great force; light force shouldn't shatter things like that. And the object causing the injury and damage to the glasses had to be hard; that he would have no way of knowing the size of the object that cracked the eye glasses and would not know whether it was big or small. Plaintiff testifies that he was on the sidewalk ten to twelve feet from the mower, something that looked like a shadow came from the direction of the lawn mower and hit him in the left eye, he could not say how big the shadow was or how far away when he first saw it for it was coming too fast. He didn't have a chance to do anything.

Defendant made a statement to plaintiff's mother as to the mower throwing a rock but does not remember when it was made.

From the foregoing it is apparent it was a jury question as to a hard object being propelled with great force by the mower that injured plaintiff.

The only specification of negligence submitted by the able trial court is as follows:

'In operating or permitting to be operated a power mower of a rotary type under the conditions existing in said yard where the plaintiff's presence was known to said defendant.'

This leaves for our consideration the condition of the yard. Was the defendant negligent in mowing the lawn under the existing condition? Was there foreseeable danger to the plaintiff?

Negligence has been defined by this court as follows:

'Negligence at common law is the doing of something which an ordinarily careful and prudent person, under the same circumstances, would not do, or the failure to do something which an ordinarily careful and prudent person, under the same circumstances, would do. The care exercised by an ordinarily careful and prudent person is in proportion to the apparent danger involved.' See Buchanan v. Hurd Creamery Co., 215 Iowa 415, 246 N.W. 41, 45;

'It could be only the failure of defendant to do something which, under the circumstances as they appeared to him, or should have appeared to him, as a reasonable man, he ought to have done, or the doing of something which, under such circumstances a reasonable man in the exercise of proper care for plaintiff's safety ought not to have done, and which could be found by the jury to have resulted in the injury to plaintiff, that would justify a verdict against him.' See Cresswell v. Wainwright, 154 Iowa 167, 134 N.W. 594, 597.

The question of due care is normally a jury question. Mr. Justice Holmes states in the Common Law P. 150:

'The question what a prudent man would do under given circumstances is then equivalent to the question what are the teachings of experience as to the dangerous character of this or that conduct under these or those circumstances; and as the teachings of experience are matter of fact, it is easy to see why the jury should be consulted with regard to them. They are, however, facts of a special and peculiar function. Their only bearing is on the question, what ought to have been done or omitted under the circumstances of the case, not on what was done. Their function is to suggest a rule of conduct.'

In Stafford v. Gowing, 236 Iowa 171, 18 N.W.2d 156, 159, this court in distinguishing Reynolds v. Skelly Oil Co., 227 Iowa 163, 287 N.W. 823, quoted the following:

'Plaintiff's evidence makes no attempt to show that the way in which the work was done was either dangerous or unusual or that the tools used were either dangerous or unusual.'

In answer to the question of 'existing condition' and 'foreseeability' in this action the lawn must be in such condition from debris that defendant as a reasonable prudent person should have foreseen that the operation of a power mower in the lawn unnecessarily and unreasonably exposed plaintiff to injury.

The testimony most favorable to plaintiff on the condition of the lawn follows. Plaintiff's father testifies that he made observations of the yard on Tuesday or Wednesday after the accident on Monday. He says, 'I just walked through the yard, at that time I had no idea of how the accident had happened. The only thing that I had been told or knew anything about was the clothesline. Something was in the vicinity of the clothesline. I walked through the yard, the back yard, just making an overall check up, trying to fix in my mind how it happened, and what was there to make it happen. At that time these bricks were still back by the garage, and they were also southwest of the house. The oak trees were as I have described them. I made observations north of the sidewalk. I walked around just kicking through the yard; seeing what was there--kicking for rocks, debris or anything that the mower could throw, and that is what I observed. There were rocks,--not large rocks, perhaps in the pebble, about the size of the end of your thumb or fingers. There were little jagged chips of brick. There were small twigs that dropped off of our oak tree,--not large but those that drop off of an old oak tree.'

There was further testimony about bricks being located in or close to the area being mowed and in other parts of the yard. The defendant testifies that she had her daughter pick up sticks in the yard. There was also testimony the yard was used by the children to play in and bricks were used to hold tents for the children.

There was a brick chimney removed from the house in the fall of 1953. The testimony shows the bricks were removed from the roof both by throwing to the ground and by sliding them in a trough to a truck. This took place south and west of the house. After this operation there was debris in the south lawn from the bricks and mortar. Bricks had been hauled away and bricks saved to build a fire place.

It is only fair to say there was evidence on the part of the defendant contrary to the evidence above set out as to the condition of the lawn mowed.

From the above testimony it is apparent there was substantial testimony that the chips of brick amounted to an unusual condition in the yard from other than natural causes. The area being mowed by a rotary type power mower was dangerous to persons near or in the area being mowed and defendant as a reasonably prudent person knew or should have known this and taken proper steps for reasonable and necessary safety of plaintiff.

The jury could properly find the area being mowed, with a rotary power mower with the blade moving 500 to 3600 r. p. m.'s, and containing chips of brick, was dangerous to anyone in the immediate area.

Reynolds v. Skelly Oil Co., 227 Iowa 163, 287 N.W. 823, is distinguishable from the case at bar as indicated above. The work in that case was being done in the ordinary way with no unusual condition added to make the operation dangerous.

In Nelson v. Lake Mills Canning Co., 193 Iowa 1346, 188 N.W. 990, cited by defendant, a six year old boy crawled through an opening, sufficient in size to afford...