Concurring Opinion
Sharp, J.While I concur with the result reflected in the majority opinion I do not agree with all of its reasons and reasoning. My differences are of such nature that they should be briefly stated.
The record in this ease clearly discloses that the Appellant, Jerry D. Stayton, was injured while he was a bystander on his own property some 50 feet from the Appellee Funkhouser who was operating a tractor type rotary lawn mower in his own backyard. The record fails to disclose the circumstances of incurred risk or contributory negligence as a matter of law and the decision of the trial court in directing the verdict at the end of the plaintiff’s evidence cannot be justified on this basis. See Rouch v. Bisig, 147 Ind. App. 186, 258 N. E. 2d 883 (1970) and the authorities cited therein.
My basic disagreement with the majority relates to that part of the majority opinion which purports to describe the duty of the operator of a rotary power lawn mower owed to a bystander who, in this case, was nearby on his own property. It is clearly implicit in Beaver v. Costin, 352 Mass. 624, 227 N. E. 2d 344 (1967), that the operator of a rotary power lawn mower is charged with the duty to take reasonable precautions to operate the same so that rocks or other debris will not be ejected and thrown in the direction of a bystander, particularly one located nearby on his own premises. As the majority opinion indicates in its discussion of Beaver the *88operator is charged with the actual or constructive knowledge that a rotary power lawn mower will pick up rocks and other debris and throw them for some distance. The majority opinion states Appellee Funkhouser did not have the requisite knowledge to sustain the finding of a duty. Knowledge can be either actual or constructive. Constructive knowledge means the law charges him with that knowledge, saying the reasonably prudent man would have such knowledge. It would be the function of a jury to decide if Appellee Funkhouser knew or should have known of the danger of rocks and debris being thrown from his lawn mower in this set of circumstances as guided by the reasonably prudent man standard if Appellant carried his burden of proof as to the breach of the duty to use reasonable care. This interpretation is also borne out by the opinion of Justice Thorton in Motter v. Snell, 250 Iowa 1247, 95 N. W. 2d 735 (1959), which is also referred to and quoted in the majority opinion. In his opinion Justice Thornton selects a wide range of authorities which clearly establishes the duty of the operator of a rotary power lawn mower to operate' the same in such a manner so as not to throw rocks and debris toward or upon a bystander. In this case there is substántial evidence of probative value to charge the Appellee Funkhouser with the duty of operating this particular rotary power lawn mower in such a manner so as to not cause it to throw rocks or debris in the direction of the Appellant who was standing in his own backyard.
Recently in Sills v. Massey-Ferguson, Inc., 296 F. Supp. 776, 781 (N.D. Ind. 1969), Judge Eschbach stated:
“As to the foreseeability test, this court holds that a person standing approximately 150 feet from a lawn mower utilizing rotary blades is foreseeably within the zone of danger that exists if the product is defective in design or manufacture.....The zone of liability is commensurate with the zone of foreseeable risk.”
Admittedly, the primary thrust of Sills v. Massey-Ferguson relates to strict liability but the above quotation was made in *89the context in considering the ordinary man — foreseeability standard of care.
The majority opinion states:
“Neither Appellee may be charged with actual or constructive knowledge that an object might be hurled a distance of 50 feet inflicting injury on Appellant. This was not a result or consequence which was probable according to the ordinary and usual experience of mankind.”
I believe that the above statement in the majority opinion conflicts with the reasoning and result in the Beaver case, in the Hotter case, and in the above quoted passage from the Sills case. Further, I believe that in terms of the ordinary and usual experience of mankind it is highly probable that the average rotary lawn mower will pick up and throw rocks and debris causing injury to nearby bystanders. The existence of such duty is further substantiated in Loonan Lumber Co. v. Wannamaker, 81 S. D. 51, 131 N. W. 2d 78 (1964), in which case the operator of a mowing unit operated it in such a way so as to propel a rock through the window of the plaintiff’s house approximately 75 feet away. The operator contended that the evidence shows no negligence on his part. However, the court rejected such argument and stated that the operator knew or should have known that the use of a rotary mower in the area involved was a hazard and danger to the persons and property in proximity thereto and that a rock, if touched by the rotary blade, would be hurled through the air toward the plaintiff’s property. The existence of the some duty is rationalized in Glenn v. Raleigh, 246 N. C. 469, 98 S. E. 2d 913 (1957), although the judgment was reversed on errors in the instructions given by the trial court.
Thus, I would find in this case that a duty clearly existed on the part of the operator of the lawn mower to operate it in such a manner so as not to cause injury from flying debris and rocks to a bystander. I agree with the majority that a homeowner does not have the duty to “minutely” inspect his *90yard before mowing with a rotary lawn mower. However, such an owner does have a duty to make reasonable inspections under all the circumstances where it is reasonably foreseeable that such mower will pick up rocks and debris and throw them so as to injure a bystander who has a right to be where he is standing nearby. This is neither an “impossible burden” nor does it make the operator of a rotary mower an insurer.
The basic question then becomes whether or not there is substantial evidence of probative value to show the breach of any such duty.
I have carefully searched the transcript and the evidence in this Case as reflected in the transcript and I am unable to find any evidence or reasonable inferences therefrom to show a breach of the duty which is above described.
With the above thoughts I concur in the result reached in the majority opinion.
Note. — Reported in 263 N. E. 2d 764.