Ellis v. Henderson

• Decision Date: 18 June 1957
• Docket Number: No. 10802,10802
• Court: West Virginia Supreme Court
• Parties: Albert C. ELLIS v. Aubrey HENDERSON et al.

Page 719

98 S.E.2d 719

142 W.Va. 824

Albert C. ELLIS v. Aubrey HENDERSON et al.

No. 10802.

Supreme Court of Appeals of West Virginia.

Submitted on Rehearing May 7, 1957.

Decided June 18, 1957.

Syllabus by the Court

'In an action based upon negligence for the recovery of damages there must be reasonable evidence that the defendant was negligent. When, however, the instrumentality which causes an injury is shown to be under the management and the control of the defendant and the injury is such as in the ordinary course of events does not happen if the person having such management and control uses proper care, the occurrence of the injury furnishes reasonable evidence, in the absence of explanation by the defendant, that it resulted from negligence.' Point 2, Syllabus, Wright v. Valan, 130 W.Va. 466, 43 S.E.2d 364.

Samuel D. Lopinsky, Chester Lovett, Charleston, C. E. Copen, Winfield, for plaintiffs in error.

Herbert W. Bryan, C. Judson Pearson, St. Albans, for defendant in error.

RILEY, President.

This is an action of trespass on the case to recover damages for personal injuries, instituted in the Circuit Court of Putnam County by the Plaintiff, Albert C. Ellis, against the defendants, B. L. Henderson and Aubrey Henderson, the former's alleged employee, in which the plaintiff was awarded a judgment in the amount of nine thousand dollars based upon a verdict of the jury. To this judgment the defendants, B. L. Henderson and Aubrey Henderson, prosecute this writ of error.

The case is now before this Court on a rehearing.

The plaintiff relied upon the doctrine of res ipsa loquitur, both at the former hearing and on the presentation of this case on rehearing; and this Court, in reversing the judgment of the circuit court on the original hearing, held that the doctrine of res ipsa loquitur is inapplicable in 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 807.

For convenience in the writing of this opinion, as the statement of facts contained in the former opinion of this Court in this case amply raises the question whether the verdict of the jury in the amount of nine thousand dollars may be supported on the theory that the doctrine of res ipsa loquitur applies, we shall in this opinion substantially adopt the statement of facts contained in the original opinion and in the dissenting opinion.

Albert C. Ellis, the plaintiff, received severe and permanent 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 in a similar parade held on July fourth, the plaintiff had ridden in the same kind of bucket of a tractor-loader owned by the defendant, B. L. Henderson, and operated by his employee, Aubrey Henderson. On the occasion upon which the alleged injuries were sustained, the plaintiff had been promised by the defendant, Aubrey Henderson, that he could ride in the bucket in the Fourth of July parade to be held in Hurricane in 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 entered the lowered bucket of the tractor-loader, and shortly thereafter, as the parade commenced, the defendant, Aubrey Henderson, raised the bucket with the plaintiff in it by the mechanical lift attached to the tractor-loader, 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 daughter, then about seven years old, 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 because of traffic congestion, the bucket was suddenly tipped and plaintiff was thrown violently to the pavement, resulting in severe injuries, which plaintiff contends and this record discloses are permanent.

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 expel 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 defendants, we employ the language of the brief of counsel for defendants, who are plaintiffs in error in this Court, at the first hearing of the case in this Court, which reads: 'This machine, motor driven, consisted of a tractor and loader; there was a 'boom' on the loader and on the end of the boom was a 'bucket' an essential part of the loader. This 'bucket' was 'dumped' by pulling a lever, and the boom was raised and lowered by using another lever, * * *.'

The tractor-loader, in which plaintiff was riding at the time the bucket was tipped causing his injuries, was new and of rugged 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...