Caterpillar Tractor Co. v. Boyett

Citation674 S.W.2d 782
Decision Date12 April 1984
Docket NumberNo. 13-82-405-CV,13-82-405-CV
PartiesCATERPILLAR TRACTOR CO., et al., Appellants, v. Sammy BOYETT, et al., Appellees.
CourtCourt of Appeals of Texas

Robert C. Floyd, Richard A. Sheehy, Butler & Binion, Houston, for appellants.

Ernest H. Cannon, Houston, Russell McMains, Edwards & Perry, Corpus Christi, for appellees.

Before KENNEDY, BISSETT and GONZALEZ, JJ.

OPINION

KENNEDY, Justice.

This is a products liability case. As a result of being run over by a Model 950 Wheel Loader, manufactured by appellant, appellee suffered severe personal injuries. Appellee brought suit against appellant and several other defendants to recover damages resulting from the occurrence which is the subject matter of this lawsuit. Either through settlement or instructed verdicts, all the defendants except for appellant were removed from the litigation and are not parties to this appeal. In response to the special issues the jury found appellant liable for the appellee's injuries and awarded him damages totaling $4,110,545.97. We modify and affirm.

The plaintiff was a welder employed by Brown & Root, Inc. and working at the South Texas Nuclear Project in Matagorda County, Texas on October 10, 1977. On that day, a Model 950 Wheel Loader, manufactured by appellant and owned by Brown & Root, Inc., was being operated by one Jesse Bonnett, also an employee of Brown & Root, Inc. Mr. Bonnett's job on that day was to haul materials down an incline with the wheel loader. The Model 950 Wheel Loader is a rubber-wheeled vehicle weighing approximately 26,000 pounds and capable of hauling up to 8,000 pounds of material in its front-mounted scoop or bucket. On one of his trips down the incline with a full load of materials, Bonnett lost control of the wheel loader and ran over the appellee, immediately rendering him a total paraplegic below level T-11 of his spine. Bonnett testified that, as he started down the incline, the wheel loader lost its brakes and steering, and would not shift into reverse.

Appellees' trial pleadings were to the effect that appellant had defectively designed the Model 950 front-end wheel loader by: failing to include an automatic/manual emergency braking system; failing to include an audible warning buzzer, indicating potential brake system failure; failing to provide a visual warning light, indicating potential brake system failure; designing a steering system dependent on engine RPM's; designing a system wherein the depression of the left brake pedal and the parking brake neutralize the transmission; designing a system that did not guard against failure in the air system between and including the compressor and the split-air reservoir; designing a steering system that lacked a supplemental system.

The following special issues and the jury's answers thereto establish appellant's primary liability:

SPECIAL ISSUE NO. ONE

Was the Caterpillar 950 Wheel Loader defectively designed at the time it left the possession of the Caterpillar Tractor Company?

ANSWER: Yes

A "defectively designed" product is a product that is unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use.

SPECIAL ISSUE NO. TWO

Was the defective design a producing cause of the occurrence in question?

ANSWER: Yes

SPECIAL ISSUE NO. THREE

At the time the Caterpillar Tractor Company sold the Caterpillar 950 Wheel Loader in question did it fail to give adequate warnings of the dangers or adequate instructions for safe use with respect to the product?

ANSWER: No

In its first and second points of error, appellants allege that there was no evidence or, alternatively, insufficient evidence to support the jury's findings on Special Issues No. 1 and 2. In considering a "no evidence" or "insufficient evidence" point of error, we will follow the well established test set forth in Glover v. Texas General Indemnity Company, 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Company v. Garza, 626 S.W.2d 120 (Tex.Civ.App.--Corpus Christi 1981, writ ref'd n.r.e.); CALVERT, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361 (1960).

What this Court must determine from the evidence is whether or not there was sufficient evidence to support the jury's findings that the Model 950 Wheel Loader was defectively designed. The operator of the wheel loader at the time of the appellee's injuries, Jesse Bonnett, testified that when he started work on the morning of October 10, 1977, the brakes on the wheel loader were working properly. He stated that, after a couple of trips down the incline, the brakes began to feel "funny," and he so informed his foreman who told him to continue working. On his very next trip down the incline, Bonnett experienced a total brake, steering and transmission failure, causing him to lose control of the vehicle and resulting in his running over appellee. Bonnett testified he was traveling approximately twenty-five miles an hour, when he ran over the appellee. He noticed no steering or transmission problems prior to the accident. He testified that he attempted to use both brakes, the emergency brake and the transmission to stop the machine, but none of these devices worked.

James Kettredge was another Brown & Root, Inc. employee working at the accident site. He observed the wheel loader as it proceeded down the incline. He stated that he saw the operator try to stop the machine, but that it kept accelerating.

The next witness for the appellee was Dr. Walter Reed, a professor of engineering at the University of Texas, testifying as an expert for the appellee. Dr. Reed testified that he had thoroughly examined the wheel loader in question and all of its technical data. He observed that the model wheel loader in question had no emergency back-up brake or steering system. He also opined that the emergency brake would not stop the vehicle once it was in motion. Dr. Reed then reviewed the existing brake, steering and transmission systems employed in the subject vehicle. The court then received into evidence Plaintiffs' Exhibit 23 which was a purported design by Dr. Reed of an emergency back-up brake system for the 950 Wheel Loader. Dr. Reed testified that the type of emergency back-up brake system represented by Plaintiffs' Exhibit 23 was feasible and installable in the 1969 950 Wheel Loader. He then opined that the 1969 950 Wheel Loader which ran over the plaintiff was defectively designed and unreasonably dangerous due to the lack of an emergency back-up brake system. He further opined that the lack of a warning device that the brakes had failed also contributed to the appellee's injuries.

Jim Hasten, a brake system engineer for appellant, was called by appellee as an adverse witness. He testified that an emergency back-up brake system was used by appellant on some of its 1969 wheel loaders, but not on the Model 950. He further testified that at the time that the particular 950 in question was manufactured appellant had the knowledge to install an emergency braking system in the Model 950. Mr. Hasten was next shown Plaintiffs' Exhibits 28-30. These three exhibits were copies of National Safety Reports on front-end loader accidents, dated 1965, 1963, 1966, respectively. Each of these articles listed brake failure as a cause of accidents in this type of equipment. Mr. Hasten acknowledged that appellant was aware of these reports and that they were authoritative. Mr. Hasten also testified that Plaintiffs' Exhibit 23 was copied directly from a Caterpillar Service Manual.

The appellants' defensive testimony consisted primarily of the testimony of three witnesses to the effect that nothing was wrong with the brakes on the wheel loader in question. Joe Williams was a brake expert working for Shilstone Testing Laboratories who was asked to examine the subject vehicle. He testified he tested the vehicle on the afternoon of October 12, 1977, and that the vehicle worked perfectly under all conditions. Next, William Frankos, an equipment supervisor for Brown & Root, Inc., testified that he examined the vehicle one and a half hours after the accident and that the brakes worked fine. He further testified he checked the brakes again on the day after the accident (October 11, 1977) and again the brakes worked perfectly. Finally, Floyd Johnson, another equipment supervisor for Brown & Root, Inc., testified that he tested the brakes on the subject equipment immediately after the accident and found nothing wrong.

It was disclosed during the cross-examination of Franklin Parmely, the Safety and Health Manager at the site for Brown & Root, Inc., that 17 hours of repairs were done to the wheel loader on the evening of October 12, 1977, and that 31 hours of repairs were performed on October 13, 1977 (Plaintiffs' Exhibit 11). Mr. Parmely did testify that the reports he received from the tests made on the vehicle after the accident indicated that the brakes were working properly.

Joe Zuniga, a laborer for Brown & Root, Inc. and a witness to the accident, testified that, as the wheel loader started down the incline, he saw the operator brake the vehicle. He stated that the operator then lost control of the vehicle. Ovido Resendez, another Brown & Root, Inc. laborer who witnessed the accident, also testified that, as the vehicle started down the incline, the rear wheels started bouncing off the ground and the operator lost control.

Finally, the appellant offered the testimony of Jack Kriana, a product development engineer for appellant, and Jim Hasten to the effect that the steering and brake systems on the 1969 Model 950 Wheel Loader exceeded industry standards and were "state of the art" at the time of the manufacture of the vehicle. Mr....

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