Wilson v. White

• Decision Date: 13 October 1954
• Docket Number: No. 7206,7206
• Citation: 272 S.W.2d 1
• Parties: James Dale WILSON, a minor, by his natural guardian and next friend, Nora Wilson, Plaintiff-Respondent. v. Floyd WHITE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 1

272 S.W.2d 1

James Dale WILSON, a minor, by his natural guardian and next friend, Nora Wilson, Plaintiff-Respondent. v. Floyd WHITE, Defendant-Appellant.

No. 7206.

Springfield Court of Appeals, Missouri.

Oct. 13, 1954.

Ted M. Henson, Poplar Bluff, for defendant-appellant.

David W. Hill, Charles T. Bloodworth, Jr., Poplar Bluff, for plaintiff-respondent.

STONE, Judge.

Plaintiff, 13 years 5 1/2 months of age at the time, sustained severe and permanently crippling injuries to his left index and middle fingers on April 26, 1952, while mowing the lawn at defendant's farm home with a power lawn mower. Defendant appeals from an adverse judgment of $2,000. The cause having been tried by the court, sitting as a jury, we 'review the case upon both the law and the evidence as in suits of an equitable nature', with 'due regard * * * to the opportunity of the trial court to judge of the credibility of the witnesses.' Section 510.310(4); Scott v. Kempland, Mo., 264 S.W.2d 349, 355(10); Howell v. Reynolds, Mo., 249 S.W.2d 381, 387(13). (All statutory references are to RSMo 1949, V.A.M.S.) No findings of fact or declarations of law were requested or given, so '(a)ll fact issues * * * shall be deemed found in accordance with the result reached.' Section 510.310(2); Decker v. Evans, Mo., 221 S.W.2d 127, 130(4); Maas v. Dreckshage, Mo.App., 244 S.W.2d 397, 403(7).

Plaintiff, who lived with his mother on defendant's farm, was employed at 50cents per hour to mow defendant's lawn 'nearly an acre' in size. The lawn was 'bottom' land and had been 'filled * * * a little' during the Spring of 1952. At the time of accident, there were 'some depressions in it because of the fill'; and, although it looked level, it was 'uneven' and had 'low and high places in it.' Defendant's mower, which plaintiff used, was a 'rotary type' power mower with 'a gasoline engine * * * on the top part of the mower * * * connected by a shaft to a rotary blade,' which revolved 'at a tremendous rate of speed' parallel with and close to the ground. A metal shield covered the rotary blade, but there was sufficient clearance in front to permit 'the grass to stand up as it comes in contact with the rotary blade.' The gasoline tank on top of the motor was filled through a small opening near the front of the tank, which was closed with a screw cap. Although we find no definite evidence to sustain the charge in plaintiff's amended petition that this screw cap 'was defective', defendant testified that 'if you don't tighten it down good, it will vibrate off.' The gasoline motor operated only the rotary blade. 'You have to push it (the mower), it is not self-propelled.' However, it was alleged in plaintiff's amended petition 'that the vibration * * * of the said engine caused the said mower to propel itself forward even though no personal force was applied to the said mower'; and, plaintiff adduced evidence that 'they will creep forward on you' and that 'they go forward an inch or two and on rough ground they will go further than that because of the tremendous speed of this rotary blade.' And, when defendant was asked on cross-examination, 'have you noticed it (the mower) vibrating where you have got a depression and a little hilly ground, you have noticed it move forward * * * haven't you?', he replied, 'I have seen it do that, it will do that.'

Plaintiff testified that, on the date of accident, defendant 'got the lawn mower out and put the gas in it and started it up and * * * pushed it fifteen or twenty foot and set the gas and handed it to me and I started mowing his lawn'; that defendant showed him 'how to stop the mower'; but, that defendant gave him no other instructions about handling the mower and told him nothing about the dangers incident to operation or about the inherent characteristics or tendencies of the machine. Defendant said that 'I told him (plaintiff) to be careful with it and to not put his hands or feet underneath the mower, that the propellors would cut him,' but defendant frankly admitted that he had not told plaintiff about the tendency of the mower to 'creep' forward with the motor running or 'about this gas cap having a tendency to vibrate and come off.' After using the mower 'about thirty, maybe forty-five minutes,' plaintiff refilled the gasoline tank and then replaced the screw cap on the tank. After mowing some fifteen or twenty minutes more, he saw the cap vibrating and stopped the mower on 'uneven' ground. The gasoline cap fell in front of the mower 'about two inches from it,' plaintiff 'walked around to the right' and reached down with his left hand to pick up the cap, and the mower 'moved forward into my hand.' Plaintiff insisted that, before attempting to pick up the cap, he had stopped the mower 'dead still' (although he did not 'kill' the motor or change the speed of it), and that he did not put his hand under the mower at any time.

At the time of accident, plaintiff was finishing the eighth grade in school. His attending physician expressed the opinion that plaintiff was a 'pretty bright boy'--'above average in mentality' for his age. Prior to the accident, plaintiff had done other work for defendant, 'maybe between thirty and fifty hours,' described by defendant as 'farm work and picking up sprouts and things on new ground.' When he was 'about 10,' plaintiff had started to drive farm tractors; and, after driving 'for a year or two,' he had begun 'working with a tractor' and farm machinery, such as plows, discs, harrows, etc. Upon trial, plaintiff insisted that he had not operated a power lawn mower prior to the date of accident, although he readily admitted that he had cut weeds with a mowing blade on 'a little garden tractor.' Defendant testified that he was 'under the impression that James (plaintiff) told me that he operated a mower like that on the school yard'; and, in a statement signed by plaintiff on April 28, 1952, two days after the accident and while he was still in the hospital, it appears that 'I used this type of mower about one whole summer last year (1951)'--'I had used the same type mower before at school but this was the first time I had used this one.' In the same signed statement, plaintiff has said 'Mr. White (defendant) had told me to be careful using the mower.' However, this signed statement does not show that, prior to the date of accident, plaintiff had operated any power lawn mower having the same inherent characteristics or tendencies as defendant's mower, or that defendant did more than warn plaintiff, in very general language, 'to be careful using the mower.'

Defendant's complaints on appeal are that his motions for a directed verdict at the close of plaintiff's case and at the close of all of the evidence should have been sustained, and that plaintiff's signed statement of April 28, 1952, was erroneously excluded from evidence. The alleged error in overruling defendant's motion for a directed verdict at the close of plaintiff's case was waived when defendant subsequently introduced evidence on the merits [Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601, 607(12); Adams v. Kansas City, Mo.App., 266 S.W.2d 771, 772(1); Baird v. Ellsworth Realty Co., Mo.App., 265 S.W.2d 770, 771(3)], and we here consider only the motion for a directed verdict at the close of all of the evidence.

The pleaded negligence with which defendant is charged, and upon which plaintiff relies, is in 'failing to inform and warn him (plaintiff) of the dangers in operating the said motor (and) failing to warn or instruct him as to the dangers inherent in the said mower * * * when he (defendant) knew or should have known that because of his (plaintiff's) youth and inexperience * * * he was not qualified to control or operate the said power mower * * * and knew that the plaintiff was not aware of the hazards incident to the operation of the said power mower.' And, the reported cases leave no room for doubt but that a master has the duty to warn a youthful and inexperienced servant of danger incident to work he is required to do or operation of a machine he is directed to use, where by reason of such youth and inexperience the servant is not aware of and does not appreciate the danger and risk ¹.

It may be that, as defendant contends, he should not have anticipated that plaintiff would have been injured at the exact time and place, or in the precise manner, that he was. But, while defendant 'was not bound to anticipate a condition or an occurrence that a reasonably prudent person could not foresee or guard against, 'the fact that the precise manner in which the injury occurred was not foreseeable would not be a defense, if from (his) failure to warn * * * the defendant might reasonably have anticipated that injury of some kind would result.'' Miller v. Brunson Const. Co., Mo., 250 S.W.2d 958, 960(4). 'While the likelihood of a future happening is the test of a duty to anticipate, this does not mean the chances in favor of the happening must exceed those against it. The test is not the balance of probabilities, but of the existence of some probability of sufficient moment to induce the reasonable mind to take the precautions which would avoid it.' Zuber v. Clarkson Const. Co., 363 Mo. 352, 251 S.W.2d 52, 55(6). If defendant's failure to warn plaintiff concerning operating dangers and inherent characteristics of the mower, which were known to defendant but which plaintiff did not know and appreciate, was a substantial factor in bringing about harm to plaintiff, the fact that defendant did not foresee the manner in which such harm subsequently occurred or the extent thereof does not prevent him from being liable. Mrazek v. Terminal R. R. Ass'n of St. Louis, 341 Mo. 1054, 111 S.W.2d 26, 29-30(6, 7); State ex rel. Emery, Bird, Thayer Dry Goods Co. v. Shain, 348 Mo. 650, 154 S.W.2d 775, 777(5); Restatement of Law of Torts, Section 435, p. 1173.

Defendant employed plaintiff, a youth 13 years 5 1/2 months...