The opinion of the court was delivered by: BECKER
Edward R. Becker, District Judge.
This is a products liability personal injury case. It is before us on plaintiff's motion for a new trial or judgment n.o.v. following a jury verdict for defendant. Plaintiff was injured by a small object shot from the discharge chute of a rotary power lawn mower. He sued the manufacturer of the mower on two alternative theories: (1) negligence in design or manufacture; (2) strict liability for unreasonably dangerous defective products.
After a three-day trial, the case was submitted to the jury on special interrogatories. The jury found as follows: (1) the defendant was not negligent; (2) the plaintiff was contributorily negligent; (3) the plaintiff's contributory negligence was a proximate cause of his injury; (4) the mower was not defective; (5) the plaintiff assumed the risk of the injury. Plaintiff's motion for new trial or judgment n.o.v. claims that the verdict was contrary to the evidence, that we erred in admitting certain photographs into evidence, and that we also erred in failing to charge the jury in accordance with certain of plaintiff's points for charge dealing with the strict liability aspect of the case.
Defendant produced two experts. One was Donald Gordon, the designer of the mower, who holds a doctorate in chemical engineering and considerable experience in the manufacture of machinery. Gordon is a member of the American Association for the Advancement of Science, American Chemical Society, American Society of Manufacturing Engineers, and American Society for Metals. The other was Gilbert Buske, a mechanical engineer and member of the Society of Automotive Engineers. Buske had ten years' experience in the manufacture of chain saws, pumps, generators, demolition saws, and lawn mowers, and had designed lawn mowers for four companies for eighteen years. He also served as chairman of the committee of the independent American Standards Association that formulated the lawn mower standards promulgated in 1960 for the manufacturers' association, the Outdoor Power Equipment Institute (OPEI), and he had also worked on the 1964 standards involved in this case. Gordon testified that the mower complied with the applicable safety specifications of the OPEI with respect to both the maximum angle of discharge and the minimum distance between the tip of the blade and the outside edge of the discharge chute. He further testified that the standards did not call for a guard in any mower meeting the distance requirement. He testified that an instruction booklet supplied with each mower warned that it is dangerous to stand or walk in front of the discharge chute. Buske also testified that in his opinion the mower complied with the applicable standards for angle of discharge and blade-to-chute clearance, and that the mower was safe and not unreasonably dangerous. And Buske emphasized that a person should not cross in front of the discharge chute.
II. Sufficiency of the Evidence
Plaintiff's sufficiency of the evidence claim is plainly lacking in merit. There was ample evidence from which the jury could conclude that the plaintiff was contributorily negligent and assumed the risk of the injury; those two findings alone would sustain the judgment for defendants because contributory negligence is a bar to an action based on negligence and assumption of risk is a bar to an action based on § 402A.
On cross-examination the plaintiff testified that just prior to his injury he walked around the left side of the mower because "I wanted to avoid the chute." The accident having occurred when he completed his trip around the mower by walking back on the right side of the mower, past the open chute, he was subsequently asked "And you were aware, I take it, that it was dangerous to walk in front of that chute with the blades spinning, were you not?" His answer was "I was aware, right."
In addition to the foregoing, Buske testified that the mower was not unreasonably dangerous, in that it was "as safe as any rotary mower. It would be a safe mower to run, to buy and use." Indeed, Buske testified that there was no type of guard that could have prevented this type of injury without rendering the mower useless or substantially less useful for cutting grass.3a While Pruyn's testimony was contrary to most of the evidence summarized above, the resolution of the disagreement among experts was a task for the jury, and they were properly free to credit all, part, or none of each witness's evidence. Viewing the evidence in the light most favorable to the defendant, there was abundant evidence to support the verdict.
In sum, the jury's verdict was not only not contrary to the evidence, but was in fact in accord with the substantial weight thereof, especially on the contributory negligence and assumption of risk points.
III. Admission of Photographs of Another Lawn Mower
Over plaintiff's objection, defendants introduced into evidence five photographs, Exhibits D-4 through D-8, of a lawn mower which Gordon identified as belonging to his neighbor and being the same model as the lawn mower involved in the accident.
Gordon, as the designer of the mower, was eminently competent as a witness to testify to the model number of the mower he photographed. The photographs were used not as substantive evidence, but rather only to illustrate and clarify Gordon's testimony regarding the method by which he measured the neighbor's mower for compliance with OPEI specifications. Thus the photographs actually showed the measurements in progress: the placement of the ruler, the use of wire to define the end of the chute opening, and the use of a piece of tape to reconstruct the original size, before wear, of the blade. Plaintiff also objected on the grounds that the photographs showed a different mower from the one involved in the accident. We note, however, that plaintiff's expert had photographed and examined the original mower, and that it was then disposed of without being made available to the defendant. Thus if defendant was to have an opportunity to present any expert testimony, it would have to be based on a different mower of similar characteristics. The evidence that the neighbor's ...