Stayton v. Funkhouser, No. 969A161

• Docket Nº: No. 2
• Citation: 148 Ind.App. 75, 263 N.E.2d 764
• Case Date: November 25, 1970
• Court: Court of Appeals of Indiana

Page 764

263 N.E.2d 764 148 Ind.App. 75 Jerry D. STAYTON, Appellant,
v.
Thomas D. FUNKHOUSER and U. L. Skipper, Appellees. No. 969A161. Appellate Court of Indiana, Division No. 2. Nov. 25, 1970.
Rehearing Denied Dec. 22, 1970.

[148 Ind.App. 77]

Page 765

George T. Patton, Sam Mirkin, Edward C. Hilgendorf, Patton, Mirkin & Hilgendorf, South Bend, for appellant.

Arthur A. May, Robert J. Konopa, Crumpacker, May, Levy & Searer, South Bend, for appellees.

HOFFMAN, Presiding Justice.

This is an action brought by plaintiff-appellant against appellees for personal injuries sustained when appellant was struck in the eye by an object thrown by the blade of a rotary lawn mower owned by appellee-Skipper and being operated by appellee-Funkhouser.

The trial court, on oral motions of defendants-appellees, at the close of plaintiff-appellant's evidence, instructed the jury to return a verdict in favor of defendants-appellees, which the jury accordingly did. Judgment was then rendered on the verdict that appellant take nothing by reason of his complaint.

Appellant appeals from the judgment rendered on the verdict, assigning as error the overruling of the motion for a new trial. Such motion contains four specifications of error, which are as follows:

1. The verdict of the jury is contrary to law.

2. The decision of the court is contrary to law.

3. The court erred in granting defendants' motions, made at the close of plaintiff's evidence, to instruct the jury to return a verdict for the defendants.

[148 Ind.App. 78] 4. Error of law occurring at the trial, as follows:

A. The court erred in sustaining the motions of the defendants for a directed verdict made at the close of plaintiff's evidence.

Generally stated, the issue presented by this appeal is whether the owner and/or the operator of a rotary lawn mower, the blade of which strikes an object and hurls it approximately fifty feet striking another person, is charged with a legal duty to the injured person.

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A concise summary of the facts is as follows:

The litigants in this appeal were all neighbors in Osceola, Indiana. On June 5, 1966, because appellee-Funkhouser's lawn mower had broken down, appellee-Skipper loaned Funkhouser his tractor-type rotary blade, power lawn mower. Appellant-Stayton also planned to use the mower on that date to level a load of top soil which had been delivered to his backyard. Appellant was to use the mower when appellee-Funkhouser finished mowing his lawn. Both Funkhouser and appellant had borrowed the mower on previous occasions.

Appellant was in his backyard shoveling the dirt, spreading it out. Appellee-Skipper, the owner of the mower, was inside his house. Appellee-Funkhouser was mowing his lawn. When appellee-Funkhouser was approximately fifty feet from appellant with the discharge opening in the cowling of the mower pointed in appellant's general direction, appellant heard two sounds, similar to gunshots, and simultaneously was struck in the left eye and temple by a dense, not extremely jagged object. Appellee-Funkhouser also heard a noise, but only one, and to him it did not sould like a gunshot.

Seeking compensation for his injuries appellant sued alleging negligence on the part of both of his neighbors (appellees here)--in a single complaint. Appellant prayed for $100,000 damages for a complete loss of vision to his left eye.

Appellant's second amended complaint alleged negligence on the part of appellees as follows:

[148 Ind.App. 79] '6. That the carelessness and negligence of defendant U. L. Skipper consisted of one or more of the following, to-wit:

(a) That he failed to warn defendant Thomas D. Funkhouser to clear his said lawn of stones, pebbles, sticks, twigs, pieces of metal and wife (wire), prior to using said mower.

(b) That he failed to warn defendant Thomas D. Funkhouser to keep said mower a sufficient distance away from other persons while it was being operated.

(c) That he failed to warn defendant Thomas D. Funkhouser to warn other persons nearby to stay a sufficient distance away from said mower while it was being operated.

(d) That he failed to warn defendant Thomas D. Funkhouser to keep the discharge opening for grass cuttings turned away from the direction of other persons who might be nearby.

'7. That the carelessness and negligence of defendant Thomas D. Funkhouser consisted of one or more of the following, to-wit:

(a) That he failed to clear his said lawn of stones, pebbles, sticks, twigs, pieces of metal and wire, prior to using said mower.

(b) That he failed to keep said mower a sufficient distance away from plaintiff while it was being operated.

(c) That he failed to warn plaintiff to stay a sufficient distance away from said mower while it was being operated.

(d) That he failed to keep the discharge opening for grass cuttings turned away from the direction of plaintiff.

'8. That by reason of, and as a direct and proximate result of, the negligence of both temporarily and permanently in that he suffered lacerations of the face and a torn retina of his left eye; that as a result of said injuries, plaintiff suffered the complete loss of sight in said eye.'

Appellant contends that the verdict of the jury and the judgment thereon is contrary to law, arguing that evidence

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of probative value was introduced from which the jury could have found negligence on the part of both appellees.

A directed verdict removes the case from the province of the jury. Because the jury does not serve its usual function and due to the severity of the result for plaintiff-appellant we must constantly be cognizant of Article 1, § 20 of the Constitution of Indiana, which provides:

[148 Ind.App. 80] 'In all civil cases, the right of trial by jury shall remain inviolate.'

The burden of producing facts to establish a duty was upon appellant. In reviewing the record, which is composed of appellant's evidence, we may not weigh the evidence. We must look only to the evidence most favorable to plaintiff-appellant, together with all legitimate inferences to be drawn therefrom. Only if there is a total absence of evidence of probative value or legitimate inference upon a material point--here a legal duty--may we sustain the action of the trial court. Whitaker, Admr. v. Borntrager, 233 Ind. 678, 122 N.E.2d 734 (1954); Gwaltnay Drilling, Inc. v. McKee, Ind.App., 259 N.E.2d 710, 22 Ind.Dec. 48 (1970); Stover v. Fechtman, 140 Ind.App. 62, 222 N.E.2d 281 (1966); Huttinger v. G. C. Murphy Company, 131 Ind.App. 642, 172 N.E.2d 74 (1961), (Transfer denied); Moslander v. Moslander's Estate, 110 Ind.App. 122, 38 N.E.2d 268 (1941).

Appellant's second amended complaint alleged negligence. The elements of actionable negligence are set out in Neal, Admr. v. Home Builders, Inc., 232 Ind. 160, at 167--168, 111 N.E.2d 280, at 284 (1953), wherein Judge Bobbitt, speaking for our Supreme Court, stated:

'Actionable negligence consists of (1) the existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) a failure by the defendant to perform that duty; and (3) an injury to the plaintiff from such failure of the defendant.' (Citing authorities.)

See also:

Rust, et al. v. Watson, 141 Ind.App. 59, 67, 215 N.E.2d 42 (1966), (Transfer denied).

The issue in the instant case rests upon the first element of actionable negligence. If appellant failed to produce facts upon which a duty could be found, there can be no recovery. Liberty Mut. Ins. Co. v. Stitzle, 220 Ind. 180, 187, 41 N.E.2d 133, 139 A.L.R. 1391 (1942).

[148 Ind.App. 81] Appellant argues that the duty of appellee-Skipper arises because of his superior knowledge of the characteristics of the mower and of the inherent dangers in the use of the machine. Appellant contends that appellee-Skipper's superior knowledge of the mower and the fact that a rotary mower is 'inherently dangerous' imposes a duty upon him to warn appellee-Funkhouser as alleged in appellant's second amended complaint.

The definition of 'inherently dangerous' was stated by our Supreme Court in Neal, Admr. v. Home Builders, Inc., supra, 232 Ind. 160, at 174, 111 N.E.2d 280, at 287 (1953):

"Inherently dangerous' means that danger is contained in and is an inherent part of the constitution of the instrumentality or condition itself, at all times, in such a manner as to require special precautions to prevent injury, not simply danger arising from mere casual or collateral negligence of others.' (Citing authorities.)

We do not agree with appellant's contention that the rotary mower in the instant case is 'inherently dangerous.' However, this is not to say that a rotary lawn mower may never be an 'inherently dangerous instrumentality.' In the instant case there is no allegation that the mower was defective or functioning improperly. Under the right circumstances, supported by adequate proof, a certain rotary lawn mower in the control of a certain individual,

Page 768

or individuals, could be 'inherently dangerous', but such circumstances are not present in the instant case.

There are no degrees of care in Indiana. The only degree of care is that which an ordinarily prudent person would exercise under the same or similar circumstances. Neal, Admr. v. Home Builders, Inc., supra, 232 Ind. 160, 168, 111 N.E.2d 280 (1953); Perkins v. Sullivan, 127 Ind.App. 426, 428, 143 N.E.2d 105 (1957).

Likewise, there are no degrees of duty in the State of [148 Ind.App. 82] Indiana. As stated by our Supreme Court in Union Traction Co. of Indiana v. Berry, Admr., 188 Ind. 514, at 520, 121 N.E. 655, at 657, 32 A.L.R. 1171 (1919):

'If there can be no degrees of negligence, it must follow that there can be no degrees of duty. Duty is an absolute term. The law requires nothing more than duty; it will excuse nothing less. The duty to exercise care for the safety of another arises as a matter of law out of some relation existing between the parties, and it is the province of the court to determine...