Poches v. J. J. Newberry Co.
| Decision Date | 23 February 1977 |
| Docket Number | No. 76-1470,76-1470 |
| Citation | 549 F.2d 1166 |
| Parties | 1 Fed. R. Evid. Serv. 659 Barbara POCHES and Charles Poches, Jr., Appellants, v. J. J. NEWBERRY COMPANY, a corporation, and Aircap Manufacturers, Incorporated, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Gerald L. Reade, Yankton, S.D., for appellants; and John R. Kabeiseman, Yankton, S.D., on brief.
James E. Doyle, Yankton, S.D., on brief for appellees.
Before MATTHES, Senior Circuit Judge, and BRIGHT and HENLEY, Circuit Judges.
Barbara Poches, a resident of South Dakota, lost an eye as a result of an accident which occurred while she was operating a rotary-blade power mower sold by J. J. Newberry Company and manufactured by Aircap Manufacturers. She and her husband, Charles Poches, Jr., brought an action in the United States District Court seeking damages from Newberry, Aircap, and others. Against Newberry and Aircap, they sought recovery on grounds of negligence and strict liability. The jury answered certain general and special interrogatories adversely to the contentions made by Mr. and Mrs. Poches. The district court entered a judgment of dismissal on the jury verdict. The Poches bring this timely appeal. We affirm.
Federal jurisdiction rests on diversity of citizenship and the requisite amount in controversy. The case is governed by South Dakota law.
Charles Poches purchased the lawnmower from Newberry on May 17, 1969. He and his wife used the lawnmower from the time of its purchase until the date of the injury, August 28, 1973. While Mrs. Poches was mowing the lawn at her residence, the mower picked up a piece of wire lying in the grass and ejected it through the discharge chute. The exact trajectory of the wire after leaving the discharge chute was the subject of much dispute, 1 but, whatever its path, the piece of wire struck Mrs. Poches in the eye.
The appellants contended, among other things, that the power mower had been defectively designed by reason of the manufacturer's noncompliance with 1968 American Standards Association safety specifications. The safety standards recommended a maximum blade tip speed of 19,000 feet per minute and a maximum vertical angle of 30 degrees in the discharge chute. The evidence indicated that when the mower was constructed in 1969, the angle of discharge was 35 degrees, and, at the time of the accident, the blade tip speed may have exceeded 19,000 feet per minute.
As is the usual situation in cases of this kind, the parties sharply disagreed on crucial facts bearing on liability. Each side presented expert testimony to substantiate differing contentions of how the accident may have occurred.
The case was submitted to the jury on special interrogatories. By its answers to the interrogatories the jury found that the plaintiffs were not entitled to recover on either their theory of negligence or on their theory of strict liability in tort. And the jury specifically found that Mrs. Poches was guilty of contributory negligence that was more than slight, and that she had assumed the risk of injury.
On this appeal, appellants make the following contentions supporting motions for judgment n.o.v. on liability, or, alternatively, for a new trial:
1) The Poches were entitled to a directed verdict of liability on the strict liability theory, or, alternatively, that the appellants' new trial motion should have been granted because the verdict was against the weight of evidence.
2) The trial court erred in instructing on assumption of risk as no evidence supported such an instruction.
3) The trial court erred in instructing on misuse as a defense, because of the lack of evidence that the mower had been used in a way other than as intended or reasonably foreseeable by the manufacturer.
4) The trial court erred in denying to plaintiff's counsel the right to exhibit certain transparencies on an overhead projector while arguing to the jury.
5) The trial court committed error in refusing to allow a deposition exhibit, a diagram of an eye, to go to the jury.
6) The trial court erred in its rulings with regard to other evidentiary matters.
7) The trial court erred in refusing a new trial because of juror misconduct and because the appellees allegedly failed to comply with a pretrial order directing the parties to produce all exhibits in advance of trial.
We address the claim that Mr. and Mrs. Poches established strict liability as a matter of law. The significant legal question presented by this contention is whether noncompliance with current industry standards establishes a defective and unreasonably dangerous product as a matter of law. Appellants cite no South Dakota case for the affirmative of this proposition. The weight of authority holds that violations of industry standards, while relevant and material on the issues of liability on theories of negligence or strict liability, do not, without more, establish as a matter of law that the product is defective and unreasonably dangerous. E. g., Wenzell v. MTD Products, 32 Ill.App.3d 279, 336 N.E.2d 125 (1975); Charleston National Bank v. International Harvester Co., 22 Ill.App.3d 999, 317 N.E.2d 585 (1974); Price v. Buckingham Mfg. Co., 110 N.J.Super. 462, 266 A.2d 140 (1970); Nordstrom v. White Metal Rolling and Stamping Corp., 75 Wash.2d 629, 453 P.2d 619 (1969); and McComish v. DeSoi, 42 N.J. 274, 200 A.2d 116 (1964). But cf. Berkebile v. Brantly Helicopter Corp., 219 Pa.Super. 479, 281 A.2d 707 (1971).
Accepting appellants' contention that they established some inadequacies in the manufacturer's compliance with current industry standards in the production of the mower in question, the weight of legal authority nevertheless supports the district court's action in submitting the strict liability issue to the jury. Further, the district court committed no error in denying a new trial to appellants on the strict liability issue. The manufacturer, Aircap, had complied with industry standards promulgated in 1964. Also, some evidence indicated that Aircap complied with 1968 standards. In any event, the issue presented was particularly suited for resolution by a jury.
It is argued that the...
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