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Murphy v. Cory Pump & Supply Co.

APRIL 17, 1964.

CONSTANCE MURPHY, A MINOR, BY GEORGE MURPHY, HER FATHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

CORY PUMP AND SUPPLY CO., AN ILLINOIS CORPORATION, DEFENDANT. ROOT MANUFACTURING COMPANY, INC., A FOREIGN CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Sangamon County; the Hon. DEWITT S. CROW, Judge, presiding. Judgment affirmed.

DOVE, P.J.

In the spring of 1958, George Murphy, a farmer and father of the plaintiff, Constance Murphy, purchased a heavy duty, rotary type, riding power lawn mower from Cory Pump and Supply Company, a retail dealer, in Springfield. After using the mower at his home for some time, Mr. Murphy had some motor trouble and returned it to the Cory Company to have it repaired, and while being repaired, the Cory Company supplied Murphy with another power mower, identical in every respect with the one he had purchased. The mower purchased by Murphy and the mower the Cory Company delivered to Murphy's home for him to use while his mower was being repaired were manufactured by Root Manufacturing Company, a Kansas corporation.

After using the mower a half dozen times, Murphy instructed his daughter, Cheryl, how to operate it, gave her some rules and instructed her to watch for objects and not to hit them, to check the oil and to see to it that it did not run out of gas.

In the Murphy family were five children, Cheryl, the oldest, who in June 1958 was 12 years of age; Constance, then 7 years of age; Victoria, Patty and Linda. On June 20, 1958, Cheryl was operating this machine, mowing the lawn at the Murphy home. Near the area where Cheryl was mowing was a set of swings. On this day, Mr. Murphy had mowed the largest part of the yard, stopped the motor and was ready to return to the field. He helped Cheryl start the mower, cautioned her to be careful of the children, and told her that if anything went wrong she should shut off the mower. Constance and Victoria were playing in the yard. Their backs were toward the mower, and in trying to get out of the path of the mower, Constance slipped and fell. Her left leg came in contact with the rotary blade, causing injuries resulting in the amputation of her leg.

On October 20, 1959, the instant three-count complaint was filed. In the first count the plaintiff, Constance Murphy, sought a recovery from the said Cory Pump and Supply Company, a retailer of power lawn mowers. Count two was directed against the Root Manufacturing Company, the manufacturer of the mower, and by count three, the plaintiff sought a joint recovery against the manufacturer and the retailer. Counts one and three are not involved in this appeal.

Count two, so far as material to the issue presented for determination, alleged that defendant was engaged in the business of manufacturing gasoline powered, riding, lawn mowers, and sells them to retail dealers for resale; that prior to June 20, 1958, it sold to Cory Pump and Supply Company one of its lawn mowers; that said mower was inherently dangerous in that it was so designed and manufactured that although the rotary blade appeared to be covered, there was no screen or bar lower than eight and three-fourth inches from the ground in front of the machine; that on reasonable inspection of said machine, it was apparent that no adequate protection was afforded children; that inadequate guarding of the blade was likely to injure and maim children who might be playing near and in front of said machine while it was in operation; that on June 20, 1958, while said mower was being operated by the sister of plaintiff, in the yard of the plaintiff, the plaintiff fell in the path of the mower and because of the lack of any guard on the front of the mower, plaintiff's left leg slipped into the rotary blade of the mower, and was so badly mangled that an amputation became necessary. It was then alleged that plaintiff at the time of her injury was seven years of age, and in the exercise of such due care and caution as could reasonably be expected of a child of her age.

The answer of the defendant admitted that it manufactured gasoline powered, riding lawn mowers, and sells them for resale to divers dealers, including Cory Pump and Supply Company, but denied all other allegations of count two of the complaint. Thereafter defendant filed its motion for a summary judgment supporting its motion by portions of discovery depositions of George Murphy, father of plaintiff, Constance Murphy, the plaintiff, Cheryl Murphy, her sister, and Thomas J. Cory, president of Cory Pump and Supply Company.

In support of its objections to the motion for summary judgment, plaintiff filed counteraffidavits, one by its counsel and another by George Murphy, the father of the plaintiff. Upon the hearing which followed, the trial court sustained the motion of Root Manufacturing Company, Inc. and from an appropriate judgment in bar of the action and for costs, the plaintiff appeals.

Counsel for plaintiff state that no charge is made that there was any defect in the manufacture of this mower, or mechanical failure of any of its parts; that the charge is that the rotary blade appeared to be covered, but in fact it was without a screen or bar in front of the mower lower than eight and three quarters (8 3/4) inches from the ground, and that the negligence of the defendant consisted in designing and manufacturing a machine without installing appropriate guards in front of the blades. Counsel insist that whether defendant was so negligent was a factual question, and although the facts are not in controversy, plaintiff was entitled to have a jury determine whether defendant was guilty of such negligence, and if so, whether such negligence was the proximate cause of plaintiff's injuries. Therefore, concludes counsel, it was error for the trial court to render summary judgment.

The affidavits, depositions and exhibits, including photographs of, and the power mower itself, were before the trial court, and are before this court. A detailed description of the mower and its construction is found in the record. The purchaser of the mower, the father of the plaintiff, testified that he went into the retail store, operated by Cory Pump and Supply Company, and examined the mower two or three times before he purchased it. He testified that he observed the side rails and "probably did look at the underside," but perhaps, "overlooked the fact that the power mower had no front or rear guard rails." He testified that he knew there was nothing in front of the mower to prevent a rock from being thrown, and he so advised his children, and told Cheryl to watch and be careful of the children and to stop the blade if the children came around while she was mowing.

The record discloses that when this mower was purchased by the father of the plaintiff, and when it was delivered to his home, a pamphlet or brochure was attached to the mower, which had been attached to it by the defendant manufacturer. This brochure said in part:

"Caution List for Power Mower Safety and Operation"

"When starting, stand firmly. Always keep your feet away from the blade. Learn to disengage the clutch or to stop the motor quickly. Stop the motor whenever you leave the mower. Don't let children or pets play around the mower while operating. Be sure of balance on inclines. Clear the lawn of debris. Never overspeed the blade; leave the governor alone. When you want to work on the mower, disconnect the spark plug. Never reach under the mower; tip the machine over so you can reach the underside easily. Finally, keep fuel stored with care, in a tight container, in a ventilated space."

An examination of this mower discloses that there is a fender in front of the machine which is 8 3/4 inches above the ground. Beneath the fender, four or five inches, is an axle and on both sides there are slotted side rails. There was no guard in front of the rotary blade, and there was nothing in connection with the construction of the mower that would make it appear otherwise. No one could have been, nor is there anything in the record to show that anyone was, deceived or misled by the appearance of this mower. As suggested by counsel, the purchaser, the members of his family, and the operator of this machine, all recognized that this mower was not a harmless toy.

There is no conflict as to any fact or issue in this case. There was no guard in front of the blades of the mower, but no one was misled by its appearance. The purchaser of the machine had cautioned his children not to play around the mower when in operation, and on the occasion when plaintiff sustained her injuries, she attempted to get out of the path of the machine, but ...


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