226 F2d 909 Pontifex v. Sears Roebuck & Company

226 F.2d 909

E. J. PONTIFEX, and Judith Rae Pontifex, an infant, who sues

by E. J. Pontifex, her father, as next friend, Appellants,


SEARS, ROEBUCK & COMPANY, Incorporated, Appellee.

No. 7009.

United States Court of Appeals Fourth Circuit.

Argued Oct. 10, 1955.

Decided Nov. 4, 1955.

Louis B. Fine, Norfolk, Va. (Howard I. Legum, Norfolk, Va., on brief), for appellants.

Thomas H. Willcox, Jr., and Thomas H. Willcox, Norfolk, Va. (Willcox, Cooke & Willcox, Norfolk, Va., on brief), for appellee.

Before PARKER, Chief Judge, DOBIE, Circuit Judge, and THOMSEN, District Judge.


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This is an appeal from a judgment on a directed verdict for defendant in a personal injury case. Plaintiff was injured when she was struck in the eye by a rope pulled to start the gasoline engine of a lawn mower. Plaintiff contends that there was negligence in the design of the lawn mower in that the rope was not permanently attached to a spring recoil mechanism, such as is found in the latest models of these machines, and that no warning was given of the danger of using it. We do not think, however, that it can be held to be negligence to sell an old model machine not equipped with a safety device of later models, and we find no evidence of negligence in the design or construction of the machine or of any need for warning or of any other negligence upon which a verdict for plaintiff could have been based.