Caterpillar Tractor Co. v. Cropper
| Decision Date | 30 September 1986 |
| Docket Number | No. 9481,9481 |
| Parties | Prod.Liab.Rep. (CCH) P 11,221 CATERPILLAR TRACTOR COMPANY, Appellant, v. Anthony Paul CROPPER, Appellee. |
| Court | Texas Court of Appeals |
Eugene W. Brees, II, Thompson & Knight, Dallas, George LeGrand, San Antonio, for appellant.
Russell H. McMains, Edwards, Perry, McMains & Constant, Corpus Christi, for appellee.
Anthony Paul Cropper, an employee of the Chevron Resources Uranium Mine in Panna Maria, Texas, was injured when the Caterpillar 651B water wagon he was operating ran over a large, folded metal backhoe track. Suit was brought against Caterpillar on theories of strict product liability and negligence. The jury found against Caterpillar on all liability issues and refused to find Cropper contributorily negligent. On appeal Caterpillar raises various points of error, including the contention that the jury's failure to find Cropper contributorily negligent was against the great weight and preponderance of the evidence. We agree and remand the case for a new trial.
On December 29, 1981, Anthony Paul Cropper was operating a Caterpillar 651B water wagon. The 651B water wagon is a large off-road vehicle used to spray water for dust control. The cab of the vehicle, designed and manufactured by Caterpillar, contains the operator's seat, the controls and the engine compartment. The cab is connected to a large water tank via a gooseneck-type connection. The tank holds over 12,000 gallons of water and is equipped with nozzles at the rear which can spray water about thirty feet to either side. The operator's seat in the cab is positioned on the left. The engine is situated to the right front of the operator's compartment. The engine has a large muffler and air cleaner which extend from the engine compartment. The muffler is about five feet high and is oblong shaped, with the narrower side facing the operator. The air cleaner is approximately one-half as tall as the muffler, but is larger in diameter. The muffler is located about six feet and the air cleaner about nine feet from the driver's position.
Cropper was an experienced 651B operator. He had driven 651B's for fourteen months before the accident. Chevron owned and operated more than twenty 651B's, all of which Cropper had driven and operated. He was thoroughly familiar with the visibility characteristics of the 651B cab, including the restricted visibility to the right. His training in connection with the 651B included instructions that, when turning the vehicle, a left-hand turn should be used.
The accident occurred as Cropper was watering a large, open field called the equipment pad. At the time of the collision, the pad was also occupied by another Chevron employee, Gail Creek. Creek was repairing a backhoe tractor. The repairs required one of the tractor's heavy metal tracks (similar to a tank or bulldozer track) to be removed. The track had been pulled south of the tractor and folded or stacked to a height of approximately three feet. The folded stack was about fifteen feet long and weighed aproximately 13,000 pounds.
As Cropper entered the field to begin his watering, he noticed the backhoe and track and he was aware of Creek, who was standing near the backhoe. Cropper began to water the field in an up-and-back pattern. His first pass to the top of the field was about eighty feet east, traveling parallel to the backhoe, with the backhoe and the track to his left. At the top of the field he turned left 180 degrees and began to travel back down the field. The backhoe and track were again parallel to Cropper, but were now about twenty-five feet to his right. As he neared the backhoe, he slowed the water wagon to avoid spraying Creek. Once past the backhoe, he accelerated and began to turn right. At this point, the front wheels of the cab struck the track, driving the cab up and over it. The impact of the cab as it came down forced the operator's chair in which Cropper was sitting to bottom-out, which caused a compression fracture of Cropper's low back with resulting serious injuries.
It was Cropper's contention that the cab was defectively designed due to the visibility restrictions caused by the hood, muffler, and air cleaner. He testified that the restrictions were such that even though he was aware of the track and was looking for it as he turned, he was unable to see to his right sufficiently to avoid the collision.
Cropper's expert, Dr. Vaughn Adams, testified that Cropper was not negligent in operating the 651B. He stated that the cab was designed with severe visual obstructions, particularly in the right quadrant forward from the operator's position. It was Adams's opinion that these visual restrictions were present for nearly forty-six feet outward from where Cropper sat while driving the vehicle. Adams constructed a scale model and diagrams which demonstrated the restricted visibility of the 651B cab.
Caterpillar's expert, Dr. Craig Smith, also prepared a scale model of the path of travel. Smith believed Cropper could have seen the track at all times until "a minute fraction of a second before impact." Caterpillar also called Joe Geier, a professional heavy-duty equipment operator. Geier testified that he was very familiar with the characteristics of the 651B. It was his opinion that the obstructions about which Cropper complained were of little practical significance because an operator could move his head slightly and look around the muffler and air cleaner. Geier further stated that he had experienced no visibility problems whatsoever when working with the 651B. There was also testimony that the obstructions were not significant because when the 651B was in operation the muffler and air cleaner constantly moved in front of the landscape causing any object in the background to be obscured only for a brief moment. Caterpillar further introduced the testimony of August Weiss, a shop superintendent for H.B. Zachary Company. Weiss was familiar with the 651B cab and opined that while...
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Cropper v. Caterpillar Tractor Co.
...remanded for new trial, sustaining the first of these contentions without passing upon the remainder of Caterpillar's points of error. 720 S.W.2d 824. Although Cropper contends that Caterpillar waived this first contention by failing to assign it as error in its motion for new trial, we fin......
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Caterpillar Tractor Co. v. Cropper
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...to find plaintiff negligent. In support of his factual insufficiency challenge, defendant relies on Caterpillar Tractor Co. v. Cropper, 720 S.W.2d 824 (Tex.App.--Texarkana 1986) (Cropper I ), rev'd and remanded, Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646 (Cropper II ), op. on remand......