Siemer v. MIDWEST MOWER CORPORATION

• Citation: 286 F.2d 381
• Decision Date: 30 January 1961
• Docket Number: No. 16387.,16387.
• Parties: Edward D. SIEMER, as Guardian Ad Litem for Deanne C. Siemer, an Infant, and Edward D. Siemer, Appellants, v. MIDWEST MOWER CORPORATION, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

286 F.2d 381 (1961)

Edward D. SIEMER, as Guardian Ad Litem for Deanne C. Siemer, an Infant, and Edward D. Siemer, Appellants, v. MIDWEST MOWER CORPORATION, Appellee.

No. 16387.

United States Court of Appeals Eighth Circuit.

January 30, 1961.

Orville Richardson, St. Louis, Mo., for appellants.

Ernest E. Baker, St. Louis, Mo., for appellee; L. A. Robertson, Alexander & Robertson, St. Louis, Mo., on the brief.

Before JOHNSEN, Chief Judge, VOGEL and BLACKMUN, Circuit Judges.

VOGEL, Circuit Judge.

This is a suit for money damages to compensate for personal injuries resulting from an accident. Plaintiffs are Deanne Siemer, a 13-year-old child at the time of the accident, and her father, Edward, both citizens of the State of New York. The defendant is Midwest Mower Corporation, a Missouri corporation. Suit was instituted in the United States District Court for the Eastern District of Missouri. Diversity of citizenship and sufficiency of amount satisfy federal jurisdiction.

Plaintiffs' complaint alleged negligence on the part of the defendant in manufacturing, selling and making available for general public use a lawnmower "which was not safe for its intended use". The complaint affirmatively alleged that plaintiff Deanne was free from contributory negligence. The defendant's answer is a general denial plus an allegation that if any injury was sustained by the plaintiffs it was the result of the plaintiffs' own negligence and carelessness directly and proximately contributing thereto. The case was tried to a jury and resulted in a verdict in favor of the defendant. Plaintiffs have appealed.

While operating a rotary-type lawnmower manufactured by the defendant, the plaintiff Deanne Siemer's right foot was struck by the revolving blade, causing serious injury and necessitating considerable medical expense. Plaintiffs' case was based upon their contention that the mower was negligently designed in that the revolving blade was inadequately guarded by easily bent metal bars at the front and not guarded at all at the rear where a hole in the housing permitted grass to escape. It was argued in behalf of plaintiffs that this created a substantial foreseeable risk of harm to an operator walking directly behind the mower.

This appeal involves but two issues: (1) Did the trial court err in submitting to the jury the question of contributory negligence on the part of Deanne Siemer; and (2) did the court err in submitting to the jury as sole cause negligence the act of a third person, Irma Scholz? It is claimed by the plaintiffs that there was a lack of substantial evidence to support either of these two submissions. It accordingly becomes necessary to examine the evidence in detail.

The accident causing the injury complained of occurred on September 25, 1954, in Orchard Park near Buffalo, New York. The plaintiff Deanne was visiting at the home of a 13-year-old friend, Carol Scholz. Carol was mowing the back lawn at the Scholz home with a rotary power mower manufactured by the defendant in Missouri, shipped to a retailer in New York and sold there to a Mr. Gutekunst, a neighbor of the Scholzs, who had loaned it to Irma Scholz, mother of Carol. Mrs. Scholz had a reel-type mower which was being repaired. She accordingly borrowed the mower in question from her neighbor. He warned her at the time that the mower was dangerous. He showed Mrs. Scholz how to operate it and suggested that she do the mowing herself instead of letting her daughter to it because he was "a little frightened of that thing". Mrs. Scholz mowed the front lawn with the borrowed mower, then turned it over to her daughter, Carol, to mow the rear lawn while she, the mother, went shopping. In the back yard two hollow metal pipes about two inches in diameter had each been firmly embedded in a concrete foundation ten inches in diameter, leaving about one and three-quarters inches of pipe protruding above the ground level. These were designed for the purpose of holding clothes poles. When not in use for poles they were sometimes covered by flower pots. On this particular day one of the poles had been taken down but no flower pot had been placed over the protruding pipe. The other pipe had a pole in it.

While Carol was mowing the back lawn, Deanne arrived and the two of them decided to take turns with the mowing in order to get it done more quickly. Deanne had never used a rotary-type mower. She had, however, cut the lawn with her father's reel-type mower many times. She had been warned about "those mowers" and understood she might get hurt if she came in contact with them. Deanne had been mowing for five or ten minutes when the accident occurred. She was going down a slight grade, mowing more slowly than the average person walks, when the mower apparently struck the uncovered metal pipe. She testified she had been looking ahead of the mower to see if anything was in the way; that when the mower struck "something" it "bounded back on my foot" and "I am sure I did not jerk it back, and I'm certain it did come back, I didn't walk into it." When she looked down, her foot was in the opening at the rear of the housing covering the revolving blade. There was evidence to the effect that the lower bar at the front of the mower was bent and marked or cut by the revolving blade which itself was marked and distorted by the accident. The evidence is that the grass was higher than the pipe, from which the jury could have concluded that the pipe was difficult or impossible to see.

Deanne testified that she knew there was something under the housing of the mower cutting the grass and that she must keep from getting her hands or feet or any part of her body under there; that if she had seen the pipe sticking up from the ground in front of the mower she would have known that it would be dangerous to run into. Other testimony in behalf of the plaintiffs indicated that if the mower were pushed as Deanne testified and it struck the pipe, the soft malleable steel bar at the front of the mower would bend inward, permitting the revolving blade to strike the metal pipe.

Expert testimony was offered by both parties. That in behalf of the plaintiffs indicated that the blade, striking the curved surface of the steel pipe, would create a force in the opposite direction of sufficient magnitude to throw the mower upward and backward several feet.

Defendant's expert witnesses testified from experience and from tests made and examination of the mower that the whirling blade never struck the pipe but confined its engagement to the metal bar and that if it did strike the pipe it could not create a force sufficient to throw it up into the air and backward so as to strike the operator's foot. Additionally, they claimed that any force created would have a tendency to cause the mower to go sideways to the left and not backward.

Plaintiffs' expert witness testified that the mower in question had a dangerous design in several respects: First, because the revolving blade was only an inch and a half from the rear of the housing opening at the back of the mower; second, because the handle could be freely moved up into an almost vertical position, permitting the mower to come backward on the operator's foot; and, third, a weak, malleable and easily bendable guard at the front of the mower.

Defendant's expert witnesses testified that the mower was designed as a "trimmer" so it could be gotten close to objects while cutting grass and that this explained the nearness of the whirling blade to the edge of the housing. They gave it as their opinion that the metal bars at the front of the...