Purkey v. Sears, Roebuck & Company
| Decision Date | 30 March 1955 |
| Docket Number | No. 15174.,15174. |
| Citation | 220 F.2d 700 |
| Parties | David Allen PURKEY, by next friend, D. A. Purkey, v. SEARS, ROEBUCK & COMPANY. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Frank Grizzard, John I. Kelley, Thomas B. Branch, Jr., Atlanta, Ga., for appellant.
Edgar A. Neely, Jr., Atlanta, Ga. (Marshall, Greene & Neely, Atlanta, Ga., of counsel), for appellee.
Before HUTCHESON, Chief Judge, HOLMES, Circuit Judge, and DAWKINS, District Judge.
In the spring of 1951, one McMillan purchased from appellee a Craftsman lawn mower, distributed but not manufactured by appellee. The machine was powered by a gasoline motor and had a rotary blade which revolved at a high rate of speed. The blade was adjustable to three positions and was underneath and partially enclosed by a metal plate which was the base. Substantial metal parts enclosed the blade on the sides of the machine, except for an opening on the left side near the rear through which grass was ejected. Near the center of the opening was a piece of metal so placed and turned as to deflect grass, pebbles or other such objects away from the operator. There is nothing in the record to indicate that this machine was substantially different in construction and operation from mowers sold and used by the thousands all over the country.
On November 6, 1952, approximately 18 months after McMillan bought the mower, he was using it to trim his lawn. Mrs. Purkey, a neighbor of the McMillans, had left appellant, her four-year-old son, with the McMillans for the afternoon; and the child was playing in the yard. He was about 36 feet away when McMillan ran the mower into a small space between a shrub and a pole to cut some high grass. The blade struck an imbedded chunk of concrete, hurling a piece through the opening at the rear of the machine toward appellant, whom it struck in or near the eye. Appellant was severely injured and lost the sight in the eye.
Through a next friend, appellant brought this action for damages, alleging that appellee was negligent in selling an inherently dangerous machine without enclosing the rear opening or placing efficient guards around the blade, in failing to anticipate that the mower would hurl objects through the opening and cause injury to persons lawfully and innocently nearby. Appellee's answer was a general denial and also contained allegations of negligence on the part of McMillan and appellant's parents.
Appellee's evidence showed that a booklet of instructions was given with the machine, containing a specific instruction to the user to remove all foreign objects from the area to be cut and to avoid striking tree trunks, exposed roots and like objects. However, McMillan was a mechanic, having been so trained in the Army, and he never consulted the booklet, considering himself qualified to operate and maintain the mower on his own. He had used the machine regularly, had loaned it to neighbors and had never had any indication that such an accident as this would or could occur.
According to McMillan's testimony for appellant, at the time of the accident, he was working in a small space bordering his lawn and was concentrating on the task of maneuvering the mower into a "tight" area between a crepe myrtle bush and a utility pole. He was not certain but thought it possible that he had tilted the machine somewhat in order to reach the grass he desired to cut. Appellant was on an upward slope, well above the level on which the mower was being operated; and McMillan could not understand how the accident occurred. He had never seen the mower throw any object so far or so high, and reasoned that the result must have been brought about by the fact that the concrete was imbedded.
A Professor of Mechanical Engineering at Georgia Tech, who had had experience as a safety engineer for a manufacturing firm, testified for appellant. He stated that he had studied the mower with respect to safety precautions and determined it was "not too good". He pointed out changes which, in his opinion, would have prevented the occurrence of an accident such as the one involved here.
At the close of appellant's evidence, the trial judge granted appellee's motion for directed verdict,...
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Vroman v. Sears, Roebuck & Co.
...247 F. 921, L.R.A.1918D, 798 (2d Cir. 1917); Reynolds v. Security Trust Co., 246 Mich. 670, 225 N.W. 575 (1929); Purkey v. Sears, Roebuck & Co., 220 F.2d 700 (5th Cir. 1955); McMeekin v. Gimbel Bros., Inc., 223 F.Supp. 896 (W.D.Pa.1963). In the case now before us the court in its charge mad......
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Burgess v. Montgomery Ward and Company, 6016.
...Restatement, 1948 Supplement, Torts, § 402, Comment a. 16 Sears, Roebuck & Co. v. Marhenke, 9 Cir., 121 F.2d 598; Purkey v. Sears, Roebuck & Company, 5 Cir., 220 F.2d 700; Smith v. American Cystoscope Makers, 44 Wash.2d 202, 266 P.2d 792; Russell v. Sessions Clock Company, 19 Conn.Sup. 425,......
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Morgan v. Sears, Roebuck and Co.
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Herrin v. Lamar, 39538
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