Ellis v. Henderson
| Decision Date | 04 March 1957 |
| Docket Number | No. 10802,10802 |
| Citation | 95 S.E.2d 801 |
| Parties | Albert C. ELLIS v. Aubrey HENDERSON et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. Where in an action at law by a gratuitous guest passenger in a motor vehicle, including a vehicle such as a tractor-loader, to recover damages for personal injuries against the driver of the vehicle and the owner thereof, under the doctrine of respondeat superior, there is absence of affirmative proof of primary actionable negligence and the doctrine of res ipsa loquitur does not apply, this Court will reverse the judgment of the trial court in favor of the plaintiff.
2. The doctrine of res ipsa loquitur does not apply to an action at law instituted by a gratuitous rider in a motor vehicle, including a vehicle such as a tractor-loader, to recover damages for personal injuries against the driver of the vehicle and the owner thereof, whether such rider be an invited guest, a guest by sufferance, trespasser, or licensee, and in the absence of an affirmative showing of negligence which proximately caused the personal injuries to the plaintiff, there can be no recovery.
3. Where in an action at law this Court reverses the judgment of the trial court and sets aside the verdict of the jury on motion for a new trial, it will award a new trial.
C. E. Copen, Winfield, for plaintiff in error.
Herbert W. Bryan, C. Judson Pearson, St. Albans, for defendants in error.
In this action of trespass on the case instituted in the Circuit Court of Putnam County to recover damages for personal injuries, the plaintiff, Albert C. Ellis, was awarded a judgment in the amount of $9,000 against the defendants, B. L. Henderson and Aubrey Henderson, the former's alleged employee, based upon a verdict of the jury. To this judgment the defendants, B. L. Henderson and Aubrey Henderson, prosecute this writ of error.
Plaintiff received severe injuries as the result of having been dumped from the bucket of a tractor-loader owned by the defendant, B. L. Henderson, and driven and operated by the defendant, Aubrey Henderson, the former's employee acting within the scope and authority of his employment, while the tractor-loader was being driven in a parade held on July 4, 1953, in the Town of Hurricane. During the previous year at a similar parade held in Hurricane on July fourth, the plaintiff had ridden in the same kind of tractor-loader owned by the defendant, B. L. Henderson, and operated by his employee, Aubrey Henderson. Upon the occasion on which the alleged injuries were sustained, the plaintiff had been promised by the defendant, Aubrey Henderson, that he could ride in the Fourth of July parade to be held in the Town of Hurricane in the year 1953, 'if the big fat Chaney boy' did not ride.
As the parade was assembling, the Chaney boy did not appear, and the defendant, Aubrey Henderson, having lowered the bucket, plaintiff got into the lowered bucket, of the tractor-loader, and shortly thereafter, as the parade commenced, the defendant, Aubrey Henderson, raised the lift with the plaintiff inside, and proceeded to drive the tractor in the parade along and over the streets of the Town of Hurricane.
Also riding in the driver's seat of the tractor-loader with the defendant, Aubrey Henderson, was Aubrey Henderson's seven year old daughter, who sat on her father's knee as he drove the tractor-loader in the parade. As the parade proceeded along the streets of Hurricane for a distance of approximately one mile, during the course of which several stops were made on account of the congestion in the parade, the bucket was suddenly released and plaintiff was thrown violently to the pavement, resulting in severe injuries which plaintiff contends are permanent.
The bucket in which plaintiff was riding was attached to a swivel with a pin at each end. Under this mechanical arrangement a spring-loaded bolt holds the shovel in a level position, which spring is released by a hand-lever located to the right and forward of the steering wheel of the tractor-loader, which can be operated only by a person seated in the cab of the tractor-loader. When the lever is operated, the bucket, in which the plaintiff was riding, tips forward and down and thereby dumps its contents, in the case at bar the contents of the bucket being the plaintiff, Albert C. Ellis.
Without contradiction this record discloses that a person riding in the bucket has no control of the mechanism of the bucket, and cannot release the mechanism so as to release the contents of the bucket.
The defendant, Aubrey Henderson, at the time plaintiff was injured, was operating a Wagner tractor-loader, which belonged to the defendant, B. L. Henderson, who at the time plaintiff received his injuries, as well as at the time plaintiff first rode in the bucket of the tractor-loader, was employed by the defendant, B. L. Henderson, in his feed and farm store located in the Town of Hurricane. So that this case may be stated fairly from the viewpoint of both parties plaintiff and defendant, we employ the language of brief of counsel for defendants, who are plaintiffs in error in this Court, which reads:
The tractor-loader, in which plaintiff was riding at the time the shovel was lowered causing his injuries, was new and of substantial construction. During the course of the parade and at the time the plaintiff was injured there was no jolting of the tractor-loader, and the tractor-loader had not been driven over rough roads or terrain from the time plaintiff placed himself in it until he was injured. The record is silent as to whether there was any latent defect in the tractor-loader; but this record affirmatively discloses that the tractor-loader was so designed that, in the absence of a latent defect, the bucket could be released only by the lever on the right side of the steering column.
At the trial the defendant, Aubrey Henderson testified without contradiction that the means of lowering the boom of the vehicle was in good mechanical condition on the day plaintiff was injured; that the boom was up when witness returned to the Henderson garage with the vehicle, after the bucket had thrown plaintiff to the ground; and this witness testified that there was no defect in the mechanism of the vehicle which served to raise and lower the boom and bucket thereon, in which plaintiff was riding, which was known or by the exercise of reasonable care could have been known to the operator, Aubrey Henderson, or his employer, B. L. Henderson. In fact, this record is devoid of any evidence that the motor vehicle or the mechanism thereof had any latent defect, upon which an affirmative showing of negligence on the part of the defendants could be based, and the operator testified that at the time the bucket was caused to be lowered and plaintiff was injured, the lever had not been operated by him or his small daughter.
The extent of plaintiff's injuries, which ex necessitate enter into the question whether the verdict of the jury was excessive, is that the plaintiff Ellis, who at the time he was injured was forty-four years of age, suffered a fracture and disclocation of the right wrist, and a fracture of the left elbow which latter resulted in the complete loss of action in the elbow joint. Plaintiff's most serious injury was a comminuted and fragmented fracture of the humerus, the upper arm bone, in the left elbow, which reduced a part of it to the 'texture of gravel.'
The plaintiff was in the Herbert J. Thomas Memorial Hospital, South Charleston, from shortly after he was injured until July 18, 1953, when he was taken to the Veterans Administration Hospital, Huntington, where he remained, except for temporary releases, until February, 1955. He was subjected to one operation in Thomas Memorial Hospital, and three operations in the Veterans Hospital in efforts to save the use, or some of the use of this arm, but without success. The methods and surgical procedures employed in these efforts, it is unnecessary here to recite in detail. It suffices to say that in the trial Dr. Zablocki, an orthopedic surgeon of extensive training and experience, under whose care the plaintiff was placed in the Veterans Hospital, testified that as a result of plaintiff's injuries, he had a 'flail joint' of the left elbow, without any bone connection in the former joint and the elbow could be swung in any direction; that there was no union whatever; that his left arm was entirely useless, except for a straight-uplift; that 'without having the function of an elbow I would say that the arm isn't much good'; and that the only surgical procedure left open was another attempt to fuse the elbow and the physician left the impression this was a forlorn hope.
The plaintiff, being at the time of his injuries, a gratuitous guest passenger, or at least, if he was not an invitee, a guest by sufference in defendants' vehicle, in which case he accepted the vehicle as he found it, 'subject to the duty of his host to warn him of any known dangerous defect * * *.' Lewellyn v. Shott, 109 W.Va. 379, 155 S.E. 115, 117; Marple v. Haddad, 103 W.Va. 508, 138 S.E. 113, 61 A.L.R. 1248. As this record discloses that the equipment on the vehicle was in good mechanical condition on the day of the parade and after the vehicle was returned to the Henderson garage, and if there was any defect in the vehicle, it was hidden and was not known, or could not have been known to the defendants, the defendant, Aubrey Henderson, was under no duty under the above-cited cases to warn the plaintiff of such hidden...
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Ellis v. Henderson
...all motor vehicle cases in which a gratuitous guest seeks to recover damages for personal injuries against the driver. See Ellis v. Henderson, W.Va., 95 S.E.2d 801, and dissenting opinion, W.Va., 95 S.E.2d at pages 806 and For convenience in the writing of this opinion, as the statement of ......