Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Marko v. Sears

Decided: January 19, 1953.

JULIAN LEWIS MARKO, PLAINTIFF-APPELLANT,
v.
SEARS, ROEBUCK AND COMPANY, A BODY CORPORATE, DEFENDANT-RESPONDENT



McGeehan, Bigelow and Jayne. The opinion of the court was delivered by McGeehan, S.j.a.d.

Mcgeehan

Plaintiff sued to recover damages for injuries alleged to have been sustained by him while using a rotary type lawn mower which he had purchased from the defendant. The first count of the complaint was grounded on negligence, the second count on implied warranty, and the third count on express warranty. The defendant's motion for dismissal of the action, made at the close of plaintiff's case, was granted by the trial court and the plaintiff appeals.

From the proofs it appeared that the plaintiff visited defendant's store, where he saw and examined a rotary type lawn mower. He told the defendant's salesman that he had an area in the rear of his home which was uneven and covered by high grass, weeds and brush, and that he wanted a mower to be used on this uneven ground to cut high grass and brush. The salesman advised him that the mower which he just examined -- a Craftsman rotary power mower -- would do the work which he wanted done. In answer to his question as to the safety qualities of the machine, the salesman told him that it was absolutely safe. He then asked "whether or not that machine would stop operating if it came in contact with any object that was sticking out of the ground which might not be visible as you came along" and the salesman assured him "that it definitely would, that he had used one himself and it had cut a pipe, I believe a half an inch thick and stopped immediately; it cut the pipe off and stopped immediately."

The plaintiff had no personal knowledge of the operation of rotary mowers prior to his visit to defendant's store. At the

salesman's suggestion, he got a catalog covering this rotary lawn mower from the defendant's catalog department and examined it. In the description of the lawn mower in the catalog there was a statement "Blade completely shielded." He then purchased this lawn mower for $149.50. He took the machine home, put some gasoline in it, and began to cut the grass in the area behind his home. He had used the machine in the back portion of his property for 15 to 20 minutes when, as he described it, "I was pushing the machine along and it came in contact with a sharp -- with an object that left a sharp noise as it hit it, like a clang, and the machine bounced back, and as it bounced back it cut through my foot. I looked at the machine and the motor didn't stop, it kept on going." He saw the object struck and it was a rock which was in front of the machine.

While the plaintiff was being hospitalized for the injury he sustained, he requested a friend to return the mower to the defendant and get a refund. This was done and the refund was turned over to the plaintiff. Thereafter, the present suit was instituted.

The mower involved is a rotary type, in which the blade is power-driven and rotates on its axis parallel to the ground. Although the blade is power-driven, the mower as a unit is not self-propelled, but must be pushed. The blade is encased in metal and there are metal prongs in front, extending below the casement. The plaintiff admitted that during his examination of the mower before purchase he observed the blade and how it was encased, and saw there was an opening in the back and that the blade was open and exposed at this point.

The first count of the complaint, which was grounded on negligence, was properly dismissed. The plaintiff states that this count is grounded on the claim "that the defendant was negligent, in that the mower which defendant sold to plaintiff was not properly designed with a guard in the rear and the blade of the mower did not properly disengage upon striking an obstruction." It was undisputed that the mower

in question, which the defendant sold to the plaintiff, had an opening in the back of the casing of the mower on the left-hand side. But there was no testimony that proper design required that such a mower have a guard in the rear or that the blade of such a mower disengage upon striking an obstruction. The plaintiff claims that the uncontroverted testimony of his witness Stedman was to the effect that well constructed mowers have a shield in the back; but the fact is that Stedman gave no such testimony. He went no further than to say that he couldn't recall any other rotary mower except the Craftsman which had an opening in the back, unguarded. In support of the claim that improper design was proven as to the blade of the mower, because it did not properly disengage upon striking an obstruction, the plaintiff relies on the testimony of his witness Beckmann. There was no testimony by Beckmann or any other witness that proper design of a rotary mower required that the blade of the mower disengage upon striking an obstruction.

It was also proper to dismiss the second count, which was grounded on the implied warranty of fitness under R.S. 46:30-21(1). This subsection provides:

"Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.