(dissenting)- — -I find myself unable to agree with the majority and must respectfully dissent. This action for damages, brought by the father of the injured minor against the defendant, Charlotte -S. -Snell, resulted from ah eye injury while the minor, hereinafter referred to as the plaintiff, was watching defendant’s son, Lee Erie Snell, age 12, mow the north half of their lawn with a rotary-type mower.
The principal issue was as to the sufficiency of the evidence on defendant’s negligence and proximate cause to permit submission of that issue to the jury. It is upon defendant’s specification of error by the trial court in failing to direct a verdict for her upon that issue that I address this dissent.
There was no evidence that the rotary mower was defective or improperly operated at the time of plaintiff’s injury. There was no evidence that such a machine is a dangerous instrumentality requiring more than ordinary care in its operation.
This, then, resolves the issues to questions of whether the involved area was shown to be in such bad condition that there was great danger to anyone near by when it was being mowed with a rotary mower, and whether this condition was known to defendant or should have been known to her at that time. Was there any substantial evidence of neglect in the care of the lawn? I think not.
*1260Plaintiff’s specification of negligence was that a power mower of a rotary type was operated in the yard “under the conditions then and there existing* in said yard”, and that it was negligently operated “under the conditions existing in said yard when the plaintiff’s presence was known * * also that the yard “was and for a long time had been in a dangerous condition in that rocks from gravel driveway * * bricks and debris from a demolished chimney * * *, as well as sticks, twigs and general debris had been allowed to accumulate in the grass growing on said yard.”
It may be conceded that, had adequate proof of these allegations been offered, the question of defendant’s negligence would have been properly submitted to the jury.
But there was little or no proof of these conditions. Certainly the well-known rule that for the purpose of the ruling on defendant’s motion the evidence must be viewed in a light most favorable to plaintiff cannot convert a mere inference or a scintilla of evidence of a violated duty owed plaintiff by this defendant to the status of factual proof.
Since the real question involves a close scrutiny of the testimony, let us see what evidence there was of the alleged neglected and badly kept yard. Four trees were shown to be in that area, but the only testimony as to them was that they were oak trees, that small twigs and acorns were always being cleaned up by members of defendant’s family, and that they were not allowed to accumulate. No one contradicted that testimony.
There was testimony that two years prior a chimney had been removed on the side of the house opposite the area being mowed and that some used bricks were piled against the house some 25 feet from the area involved. No one said that litter had not been cleaned up and removed.
There was testimony that a near-by driveway had pebble-sized rocks as a base laid with a binder, but the mower was not close to the drive when this accident occurred.
It is true the plaintiff’s father testified that he made a careful inspection of the area a day or two after the accident and discovered some small rocks of pebble size and some chips of bricks in the grass near the spot where the mower was when *1261Ms son was injured. However, even he did not testify that defendant’s yard was in an untidy, dangerous or a cluttered condition.
In fact, a neighbor said this lawn was just normal, not fancy, but a yard with a fair stand of bluegrass where the children often played. Certainly there was no evidence which would permit a conclusion that this area was not an ordinary average lawn, much less that it was an untidy hazardous yard wherein a reasonably prudent person would not venture with a rotary-type mower. In addition, there is absolutely no evidence that defendant was aware of any hidden pebbles or brick chips in the grass or should have been aware of them.
I. Negligence is predicated upon an unperformed duty, and the possessor of real estate is not an insurer of the safety of all those who come upon his premises by invitation,- express or implied. Atherton v. Hoenig’s Grocery, 249 Iowa 50, 56, 86 N.W.2d 252, 255; Schafer v. Hotel Martin Co., 249 Iowa 866, 89 N.W.2d 373; Anderson v. Younker Brothers, Inc., 249 Iowa 923, 89 N.W.2d 858. In the Atherton ease we quoted, with approval, the rule announced by the Supreme Court of Virginia in Trimyer v. Norfolk Tallow Co., 192 Va. 776, 781, 66 S.E.2d 441, 444. It said: “ ‘To sustain a charge of negligence the unsafe condition relied on must be one of which the owner knew or should have known, and the invitee did not know and could not reasonably have discovered.’ ”
If, as I comprehend the majority opinion, the defendant has the duty to minutely inspect and remove all foreign objects from the area she intends to mow before it may be undertaken when anyone is near by, then we are establishing a duty which is impossible to perform. We then are announcing the rule that when anyone is injured in the vicinity of a rotary mower being operated on one’s premises, the question as to whether or not one properly performed his duty to inspect and remove all small obstacles from the area is purely a jury question. This, to me, is a new and fantastic venture into the field of tort law, and obviously makes a real-estate owner an insurer of all those near by when he uses a rotary mower to mow his lawn.
II. We have considered cases of a similar nature in the past and have never announced such a liberal view. While not *1262exactly the same, we held in Reynolds v. Shelly Oil Co., 227 Iowa 163, 287 N.W. 823, that no defendant duty was breached when a minute particle of metal chipped off a hammer being-used on a tire repair job by the service station operator struck the plaintiff in the eye. We held there was no positive evidence as to the origin of the object, and no evidence that the operation and methods used by the station operator were not those ordinarily used. Thus, the failure to show a departure from the ordinary precautions was the ground for sustaining the motion for a directed verdict. The same rule should be followed herein.
Here the plaintiff was standing some eight to ten yards from the mower when struck by something that looked like a black shadow which came fast from the direction of the mower. The object was never found. Whatever it was, it shattered the lens in plaintiff’s glasses and resulted in the loss of the lad’s eye. It is a regrettable accident, bnt there is nothing more than an inference that it was caused by the mower. The possibility that the object was a shot from an air gun or a slingshot was not excluded. Indeed, many things besides the mower could have propelled the destructive object.
It is my feeling that plaintiff has failed to carry his burden either to show a violated duty by defendant or that the operation of the mower in that area was the proximate cause of his injury. It is pure speculation, first, that the yard was not properly cleaned, and second, that the mower struck an object and propelled it toward the plaintiff, and that any amount of diligence could have avoided this mishap. Much more should appear to fix liability on the defendant herein.
Besides the plaintiff and the lad operating the mower, the defendant and her father were in the yard. None heard any object strike the easing of the mower, a usual warning of foreign objects in the grass. None was heard by the father when he operated the mower on three rounds before turning the machine over to the boy. How, then, can we say that defendant should have been aware of the danger so as to owe a duty to warn invitees or anyone in the vicinity of hidden danger or hazards?
In addition, up to this time that lawn had been mowed with a hand mower or a reel-type power mower, and they “never had any trouble with using either of these mowers on that *1263lawn.” Obviously it takes little in the way of debris to stop such mowers or alert the operator to the presence of foreign objects.
In Shreve v. Edmundson Art Foundation, Inc., 243 Iowa 237, 246, 50 N.W.2d 26, 30, we said: “ ‘Negligence is not proved by such an isolated occurrence. It must be predicated on what should have been anticipated, and not merely on what happened.’ ” The true rule approved therein, which I hope still exists, is that the ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and danger therefrom to persons going on the property. Clearly, no proof appears herein to establish that knowledge in the defendant. In fact, all the proof is to the contrary. Unless one charges the owner with knowledge of marbles, pebbles, etc., which children often drop in the grass, there is nothing to sustain an unusual condition before us.
Possibly this dissent will be a loss of effort, as most dissents are, but if it serves as a warning that blame must not always follow an unfortunate accident, the effort will not be in vain. I think defendant’s motion to direct should have been sustained. I would reverse.
Thompson, C. J., and Hays and Peterson, JJ., join in the dissent.October 20, 1959.