Werner v. Holton

KINGSLEY, J. In the course of construction of a building, defendants had occasion to use a cement finishing machine which, as described in the testimony, had the appearance of a large lawnmower with horizontally rotating blades. While the machine was being used on a Saturday morning, one of the bolts holding one blade broke or sheared, causing the blade to malfunction. Because it was unwise to allow the machine (described as weighing between 200 and 300 pounds) to remain on soft concrete, defendants’ employee, assisted by another person, carried the machine a few feet outside the building onto an adjoining lot. This lot, ultimately to become [579]a parking area for the building, was at the time vacant except for building materials and construction debris. Defendants’ employee left the machine in this place, without guard or warning sign, and (it being Saturday afternoon) unattended by any fellow workmen, while he went to secure the parts necessary to effectuate a repair. About 4 or 4:30 that afternoon, plaintiff, then a boy of 14 about to enter high school, accompanied by a friend aged 15, passed the lot, saw the machine and entered onto the lot for the purpose of examining it more closely. Plaintiff attempted to start the machine; as it started, the machine swung in such a way that its handle struck plaintiff on the head, causing severe injury.

The trial court submitted the case to the jury and included in its charge to the jury instructions (the language of which is not here questioned) which submitted the issues of attractive nuisance, assumption of risk and contributory negligence. After deliberation, the jury returned a unanimous verdict for the defendants.

I

Plaintiffs complain: (1) that the verdict was against the evidence; (2) that the court erred in submitting the issue of assumption of risk in a ease involving an attractive nuisance; and (3) that defense counsel was guilty of misconduct in particulars hereinafter discussed.

II

We have read the reporter’s transcript in its entirety. The verdict could well have gone for either party. However, the evidence was such that a finding adverse to plaintiffs could legitimately have been drawn on each major issue in the case. The trial judge denied a motion for a new trial. In this state of the record we are bound by the jury’s decision supported by the trial judge.