Swearngin v. Sears Roebuck & Company

• Decision Date: 30 March 1967
• Docket Number: No. 8626.,8626.
• Citation: 376 F.2d 637
• Parties: Robert Fred SWEARNGIN, Appellant, v. SEARS ROEBUCK & COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

376 F.2d 637 (1967)

Robert Fred SWEARNGIN, Appellant, v. SEARS ROEBUCK & COMPANY, a corporation, Appellee.

No. 8626.

United States Court of Appeals Tenth Circuit.

March 30, 1967.

John E. Shamberg, Edward G. Collister, Jr., Jacob F. May, Kansas City, Kan. (Joseph Cohen, Charles S. Schnider, Gerald T. Elliott, Kansas City, Kan., on brief), for appellant.

J. Willard Haynes, Kansas City, Kan. (Sam D. Parker, Joseph E. Stevens, Jr., Daniel M. Dibble, Kansas City, Mo., on brief; Arnstein, Gluck, Weitzenfeld & Minow, Chicago, Ill., and Lathrop, Righter, Gordon & Parker, Kansas City, Mo., of counsel), for appellee.

Before PICKETT, LEWIS, and HICKEY, Circuit Judges.

HICKEY, Circuit Judge.

On April 25, 1961, Gary Whittaker, a home owner in Mission Hills, Kansas, purchased a 20" Craftsman Rotary Power Lawn Mower, Model No. 9135, from appellee's retail establishment in Kansas City, Missouri. The tradename "Craftsman" was the sole property of appellee. The mower housing was manufactured, and the machine assembled, by a wholly owned subsidiary corporation. On the following day an employee of Whittaker used the machine to mow the lawn of the Whittaker residence in Mission Hills, Kansas. While the lawn was being mowed, the appellant, Robert Fred Swearngin, a police officer on patrol in an automobile with the window of his vehicle rolled down drove by the residence. When appellant was approximately 26 feet from the operating machine, he heard the mower make a noise and saw it throw a clod of grass from its discharge chute. Immediately thereafter, the left lens of his sunglasses was shattered and he was struck in the eye by a piece of stick several inches long. The stick penetrated the left eye, and rendered it blind for all practical purposes.

The appellant instituted an action against Whittaker and his employee. This action was settled when appellant gave Whittaker and his employee a covenant not to sue in return for the payment of $18,500.00. Thereafter, this action was instituted against the appellee, Sears Roebuck & Company, The trial resulted in a jury verdict for the appellant in the amount of $48,000.00 for which judgment was entered.

At the close of appellant's evidence and at the close of all the evidence, appellee made motions for a directed verdict. Subsequently, and within ten days after the verdict and judgment had been entered, appellee filed motion for judgment notwithstanding verdict or, in the alternative, for new trial pursuant to Rules 50(b) and 59 of the F.R.Civ.P.

After considering the arguments on the motions, the court granted the motion for judgment notwithstanding verdict authorized by Rule 50(b), and conditionally denied appellee's alternative motion for a new trial under Rule 50(c). The court also ordered, upon agreement of the parties, a remittitur in the amount of $18,500.00 reducing the amount of judgment to $29,500.00.

Notice of appeal was filed and the matter came to this court. As provided in Rule 50(c), appellee, without filing a cross appeal, asserted error in the district court's refusal to grant the motion for new trial. Appellant has replied to these assertions. The new subdivision (c) seeks to regularize the procedure enunciated in Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147 (1940); Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849; Globe Liquor Co. v. San Roman, 332 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177; Johnson v. New York, N. H. & H. R. R., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77.

It may be appropriate at this point to state the general rule with regard to the jurisdiction of the court. "* * * The general rule is that where an act of omission or commission occurs at one place and resulting death, personal injury, or damage takes place at another, the situs of the actionable wrong is the place at which the death, personal injury or property damage takes place. numerous citations." Richards v. United States, 285 F.2d 521, 523 (10 Cir. 1960); affm'd 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492.

We first consider the granting of the motion for judgment notwithstanding the verdict.

The following standards have been established:

"A motion for judgment notwithstanding the verdict is actually merely a renewal of a previous motion for a directed verdict as to which the court has reserved decision. Thus the standard is the same for both motions as to when they should be granted. Motions of this kind raise the question whether there is or was any substantial evidence to take the case to the jury. Since, if granted, they deprive the party of a determination of the facts by a jury, they should be cautiously and sparingly granted. The court may not substitute its judgment on a question of fact for that of the jury, nor direct a verdict because the evidence decidedly preponderates for the moving party. * * *

The propriety of granting or denying a motion for a directed verdict is tested both in the trial court and on appeal by the same rule. The trial court must view the evidence and all inferences most favorably to the party against whom the motion is made. The reviewing court must do the same with respect to a judgment entered on a directed verdict or the denial of a motion for a directed verdict or a judgment entered notwithstanding the verdict. The decisions are many and the rule is the same both on appeal, and on the hearing of the motion in the trial court." 2B Barron & Holtzoff, Fed. Prac. and Proc., § 1075, at 375, 378 (Rules ed. 1961).

This court's most recent statement of the standard is:

"It seems hardly necessary to repeat the rule in this circuit that a trial judge may grant a directed verdict `only when in his considered judgment it would have no foundation in fact, and the court in the exercise of its judicial discretion would be required to set it aside.\' * * * Although the rule is simple, its application by a trial court `is always perplexing and necessarily subject to the human equation.\' In borderline cases it is difficult to exclude the personal equation, but a trial judge must recognize the possibility that, `whatever might be his own view, other fair-minded men might reasonably arrive at a contrary conclusion.\' In passing on a motion for a directed verdict he must view the evidence in the light most favorable to the opposing party. Although a scintilla of evidence is not sufficient to justify submitting a case to the jury, a verdict may not be directed unless the evidence points all one way and is susceptible of no reasonable inferences which sustain the position of the party against whom the motion is made." Christopherson v. Humphrey, 366 F.2d 323, 325-326 (10 Cir. 1966). See also Hardware Mutual Ins. Co. v. Lukken, 372 F.2d 8 (10 Cir. Jan. 1967).

These standards limit the granting of judgment notwithstanding the verdict. "It is a formal finding, pursuant to direction, that the plaintiff or the defendant as the case may be, has shown no right to relief on any of his claims * * *." 2B Barron & Holtzoff, Fed.Prac. & Proc. § 1075, at 377, (Rules ed. 1961).

This court has said of the manufacturer's liability in products cases:

"In cases involving food for human consumption Kansas has held on public policy grounds that a manufacturer, intermediate handler, or retailer is `an insurer that such food will cause no harmful effects because of deleterious matter therein.\' This rule has been extended to include cosmetics, and containers of liquid beverages. In two cases arising in Kansas this court has affirmed the liability of a manufacturer for defective merchandise." Burgess v. Montgomery Ward and Company, 264 F.2d 495, 496-497 (10 Cir. 1959).

Volume 1, Frumer-Friedman, Products Liability, 1966 Cumulative Supplement, page 3, quotes from the Medical Tribune, May 26, 1965:

"It has become increasingly apparent that lawn mowers, especially the bigger power models, represent a not inconsiderable threat to safety. The National Safety Council estimates that 80,000 persons are injured annually by lawn mowers. * * *"

With these rules and precedents in mind, we conclude that the record reflects a foundation of justifiable inferences upon which reasonable minds might differ. Therefore, appellant made a showing of his right to relief and the controversy was properly submitted to the jury.

Having made the above determination, we will answer the various questions raised by the appellant and appellee.

The threshold question of negligence, or stated in different language, the unsafe design and the determination that the power mower was a dangerous instrument, is the result of the testimony adduced from experts.

Appellant's expert testified:

"I am saying in my opinion that that machine is an unsafe design and was not given the design consideration that it should have in order to protect the general public. * * * Then I will compare it to my experience and my knowledge of design, what design processes should be gone through, the laws of physics, common sense if you please, and I will compare it to that and come to my conclusion which I have stated."

The testimony of appellee's expert witness reflected in the transcript is:

"In my opinion general engineering principles and practices are applicable to the design of lawnmowers. This lawnmower conforms to generally accepted engineering principles and practices."

It is apparent there was a conflict in the opinion of the experts who had been qualified and were accepted by the trial court.¹ It was proper for the jury to choose which expert it believed. Instruction No. 7 submitted this question to them and they clearly indicated their confidence in the opinion of appellant's expert.²

The record reflects that the standards of the American Standards Association, Inc., pertaining to lawn mowers were admitted into evidence in connection with the testimony of appellant's expert witness. The appellee and the trial court, upon second thought, feel these standards should not have...