Yancey v. Hyden , 75 Ga. App. 86 ( 1947 )

A petition alleging that the defendants, who were exhibiting farm machinery at a public fair, left in their space in the fair grounds a feedgrinding machine unguarded and unattended, with the feeder pan and electric motor detached, and that the plaintiff's playmates turned with their hands the pulley designed to be operated by the motor and set the machine in motion while the plaintiff had his foot on the ledge made to support the feeder pan, and his foot was pulled into the grinding area of the machine and seriously injured, showed that the proximate cause of the plaintiff's injuries was the intervening and independent act of his playmates, and did not set out a cause of action against the defendants.

DECIDED MARCH 21, 1947. REHEARING DENIED APRIL 1, 1947. Richard P. Hyden, by next friend, R. P. Hyden, sued DeWitt Yancey and William S. Bingham, trading as Farm Equipment Exchange, and Southeastern Fair Association, a corporation, for damages for personal injuries. His petition as amended alleged substantially as follows: that the defendants agreed for their mutual benefit that certain farm machinery would be exhibited and demonstrated as one of the attractions at the Southeastern Fair, so as to attract customers for value to the defendants; that prior to October 6, 1945, Southeastern Fair Association rented or otherwise contracted or arranged space to exhibitors of farm equipment and agricultural and other exhibits, and charged admission to the fair grounds; that the fair association induced attendance of the public to said fair for the mutual benefit of the defendants, and had what was known as the annual "school day," on which day school children were admitted to the grounds and to the exhibits without charge; that the defendants, DeWitt Yancey and William S. Bingham, trading as Farm Equipment Exchange, had on exhibit certain farm machinery and equipment, including a certain feedgrinding machine; that admission to the exhibit was free and the public was invited to examine said exhibits; that the plaintiff was a boy, 12 years of age, and that he was admitted to the fair grounds on October 6, 1945, which was the annual school day, to see the exhibits; that the failure of the defendants to warn the plaintiff of the dangerous instrumentalities at the exhibit was a failure on their part to exercise ordinary care; that the feed grinder did not have the motor attached, but that it could be turned by hand from a pulley on the opposite side of the machine from where the plaintiff was standing; that there was a ledge and opening to the machine, which ledge was about 3 1/2 to 4 inches wide and which was intended to support a feeder pan, when it was attached to the machine; that the machine was a dangerous instrumentality attractive to children; that, at about 7:00 o'clock, p. m., the plaintiff and other children of approximately the same age congregated around the machine and exhibits, which were then unguarded and unattended; that no warning was given of any danger, and the defendants knew, or in the exercise of ordinary care should have known and anticipated, that the plaintiff and other children were attracted by the machinery; that the plaintiff placed his foot on the ledge and, at the same time and without his knowledge, the boys on the opposite side of the machine turned the pulley, which was designed to be operated by a motor and belt, and set the machine in motion, so that the blades revolved and caught the plaintiff's shoe and pulled his foot into the grinding area and severed his foot across the instep and ball of this foot; that the defendants were negligent in inviting the plaintiff to said fair grounds and exhibits at a time when they were unattended and unguarded, when ordinary care required of each defendant a warning that the machine was a dangerous instrumentality; that the defendants were negligent and failed to exercise ordinary care in failing to warn children of the danger of handling and undertaking to operate the machine or turning the pulley thereof, when said defendants in the exercise of ordinary care should have known of such danger; that the failure of the defendants to give such warning at said time and place was negligence and was the proximate cause of the plaintiff's injuries; that the defendants were negligent and each defendant was negligent in that each knew that a large number of children would attend the fair, since the admission to the grounds and exhibits on such day was free, and that the defendants failed to exercise ordinary care in not warning the plaintiff of the dangerous instrumentality; that the defendants were negligent in failing to keep the machinery attended and in failing to see that children were not allowed to put the machinery in motion; that they were negligent in allowing children to visit the machinery and move the same in the absence of the defendants' servants and agents; that they were negligent in allowing the machinery and blades to be exposed in the manner above set out and in leaving the machine unattended with the feeder pan detached so that plaintiff could place his foot on the ledge adjacent to the grinder, and in failing to screen or otherwise enclose the opening of the machine to the grinder blades.

The defendants, DeWitt Yancey and William S. Bingham, trading as Farm Equipment Exchange, demurred generally to the petition, upon the ground that it failed to set out a cause of action against them, and showed that the sole and proximate cause of the plaintiff's injuries was his failure to exercise ordinary care for a child of his age and mental capacity. The exception here is to the judgment overruling the demurrer. 1. The machine which injured the plaintiff was not in itself a dangerous machine or one capable of injuring the plaintiff if there had not been the intervening and independent action of the plaintiff's playmates. The machine had been used for grinding feed and, when demonstrated by the defendants, it used an electric motor for its motive power. At the time of the injury, the feeder pan and electric motor had been detached or disconnected from the machine and the machine was not in use, and those in charge of demonstrating it had gone from the fairgrounds for the day. The machine could not, and in fact did not, injure the plaintiff when he placed his foot on the ledge and into the opening which led to the grinding area. The plaintiff was injured only by reason of the independent and intervening act of his playmates, who set the machine in motion by turning the pulley on the opposite side of the machine. Even if allowing the children to enter where the machine was located was negligence, the owners or exhibitors of the machine would only be liable for the damage which naturally flowed from such act, and in the present case there was nothing to place the defendants on notice that the plaintiff might thrust his foot into the opening of the machine which led to the grinding area and that, while the plaintiff's foot remained in such opening, another child or children might turn the pulley by hand, set the machine in motion, and injure the plaintiff.

The appellate courts of this State have ruled repeatedly that the doctrine of the "turn-table cases" will not be extended.O'Connor v. Brucker, 117 Ga. 451 (4) (43 S.E. 731);Pippin v. Regenstein Co., 58 Ga. App. 819 (199 S.E. 790);Healey v. Webb, 60 Ga. App. 331 (3 S.E.2d 868). The allegations of the amended petition did not set out a cause of action against the defendants, DeWitt Yancey and William S. Bingham, trading as Farm Equipment Exchange, and the trial judge erred in overruling their general demurrer to the petition.Healey v. Webb, supra; O'Connor v. Brucker, supra;Atlantic Coast Line Railroad Co. v. Corbitt, 150 Ga. 747 (105 S.E. 358); Horton v. Sanchez, 57 Ga. App. 612 (195 S.E. 873); Pippin v. Regenstein Co., supra. Also see SouthernCotton Oil Co. v. Pierce, 145 Ga. 130 (88 S.E. 672);Atlantic Coast Line Railroad Co. v. O'Neal, 180 Ga. 153 (178 S.E. 451); Manos v. Myers-Miller Furniture Co., 32 Ga. App. 644 (124 S.E. 357); McCall v. McCallie, 48 Ga. App. 99 (171 S.E. 843).

The cases cited and relied on by the defendant in error,Archer v. Blalock, 97 Ga. 719 (25 S.E. 391), AtlantaCotton Seed Oil Mills v. Coffey, 80 Ga. 145 (4 S.E. 759, 12 Am. St. R. 244), and Folsom v. Lewis, 85 Ga. 146 (11 S.E. 606), are distinguishable on their facts from the present case and do not authorize or require a different ruling from the one made herein.

The trial judge erred in overruling the demurrer to the amended petition and in not dismissing the action as to these defendants.

Judgment reversed. Felton and Parker, JJ., concur.