Ellis v. Moore
| Decision Date | 23 March 1966 |
| Docket Number | No. A--10582,A--10582 |
| Citation | 401 S.W.2d 789 |
| Parties | Harold ELLIS, a Minor by Next Friend, et al., Petitioners, v. John I. MOORE and H. R. Wardlaw, d/b/a Red Town Farm, et al., Respondents. |
| Court | Texas Supreme Court |
B. R. Reeves, John B. McDonald, Palestine, Helm, Jones & Pletcher, Houston, for petitioners.
Ramey, Brelsford, Hull & Flock, and Donald Carroll, Tyler, for respondents.
This is a suit for personal injuries arising out of an accident in which a tractor furnished by defendants turned over on Harold Ellis and seriously disfigured him. Trial was to a jury, resulting in a judgment on the jury verdict for the plaintiffs for $126,000. The Court of Civil Appeals at Tyler held that as a matter of law the defendants had breached no duty to Harold. It reversed the judgment of the trial court and rendered a judgment that plaintiffs take nothing. 385 S.W.2d 261.
The suit was instituted by Harold Ellis through his next friend and by Harold's father, A. G. Ellis. The defendants were John I. Moore and H. R. Wardlaw who did business as Red Town Farm, and the foreman of Red Town Farm, L. E. McCrary. Moore and Wardlaw lived in West Texas, and the farm was in East Texas. They operated the farm through McCrary. Red Town Farm consisted of some 6400 acres in pasture and cultivation. Part of the land was leased to tenants upon a percentage basis of the crops produced. One such tenant was a Mr. Harper. He in turn employed A. G. Ellis. Ellis, with his family, lived in a house on the leased portion of the land. Part of the tenant's duties under the lease contract was to keep the land free of Johnson grass. During a summer recess from school, Harold Ellis, a 16-year-old boy, was employed by Harper for 50 cents per hour to clear certain areas of Johnson grass by the use of a tractor which pulled disks behind it.
The testimony established that it was the custom of the various tenants to use the farm machinery of Red Town Farm. Similarly, the employees of Red Town Farm were privileged to use the machinery belonging to the tenants. Moreover the tractor in question, as stated, was used to plow up Johnson grass on the farm, a service which inured also to the benefit of Red Town Farm. The bailment in question therefore was one for the mutual benefit of the bailor and the bailee.
On June 19, 1962, the day before the accident, Harper hired Harold to 'disk some turn rows.' The particular land was not in cultivation but adjoined cotton rows. It was part of the land leased by Harper. Early in the morning of that day, Harper and Harold went to the Red Town Farm headquarters to get one of Red Town's tractors and the disks to be dragged behind the tractor. Neither the foreman McCrary nor anyone else representing Red Town Farm was present when the equipment was withdrawn. It nevertheless was taken with Red Town's consent as set out above. McCrary said he had nothing to do with the tenants' land except to see that they did not grow up in Johnson grass.
The tractor had at its rear two hydraulic lifts. One we shall designate as the cylinder lift. It was designed to lift the disks out of the ground when they became clogged with dirt so that the disks could be freed of the mud or dirt. The cylinder lift was so designed that when it was raised, the weight of the disks and the mud or dirt on them would be distributed onto the wheels of the disking device. With the use of the device, all of the tractor's wheels remained firmly on the ground. This particular lift, however, was defective and could not be used because its handle was missing. McCrary had known for some time that the cylinder lift was not working.
The tractor also had another lift, separate and apart from the cylinder lift, which we shall call a three-point hitch. It could lift a drawbar at the rear of the tractor which lifted the disks out of the mud or dirt so that the disks could clean themselves, or so that the dirt could be knocked off them.
On June 19, then, Harold got on the tractor and proceeded to disk the land. He testified that he had had very little experience with tractors. He had driven one a few times before and had generally been told how by his father. No one including McCrary had given him any detailed safety instructions.
The soil was flat, river-bottom land. There had been rain, and it was 'pretty wet.' McCrary described it as 'gumbo-type soil.' As Harold pulled the disks, the soil attached itself to the disks and 'balled up.' Harold attempted to use the cylinder lift, but it would not work.
About 10 a.m. that morning both Harper and McCrary, at the same time, came to the place where Harold was working. They observed the problem Harold was having. Harold testified that McCrary attempted to repair the cylinder lift. McCrary denied this. In any event, McCrary told Harold that the cylinder lift would not work, and to do the best he could. He offered no further directions or suggestions as to how the mud could be safely removed from the disks. McCrary upon the trial testified that the proper way to do it was to disconnect the disks, bring the tractor back behind them, and then pull the disks backward, away from the mud. But he did not tell Harold this.
There is no evidence that Harold told McCrary that the front wheels of the tractor had come off the ground when he used the three-point hitch to clean the disks. McCrary and another of defendants' witnesses testified that if the front end of the tractor comes off the ground or 'rears up,' the proper thing to do is to disengage the clutch and lower the throttle. McCrary did not so inform Harold.
Two farmers called by defendants testified that the front end of the tractor was light, and if the tractor got overloaded at the rear (as this one did), the front end would come off the ground. McCrary testified that the way to go about upsetting the tractor was to put excessive weight on the rear of it or overload it. If the back is overloaded, he testified that 'it will come up and over.'
According to Harold's testimony, as he was disking the land on June 19, it became necessary for him to lift the disks some ten times. On two of the occasions, the front of the tractor came off the ground; and he got the front to descend by releasing the clutch. He said that it did not worry him when the front wheels came off the ground because it had never occurred to him that the tractor might turn over. He had never heard of a tractor 'upsetting on a fellow before.' When he went home that evening, he did not mention the fact that the front wheels had come off the ground.
Harold again began work on June 20. On one occasion that morning, the tractor 'reared up' on him without incident as he cleaned the disks. On the second occasion about 11:30 a.m., however, as he was looking backward at the balled-up disks, he raised the three-point hitch to clean them. He testified that he was then in a narrow ditch. The front came off the ground, and the tractor turned over on him. Harold testified that the accident happened so quickly that he could not manipulate the clutch or throttle. He was pinned under the tractor and knocked unconscious. Hot crankcase oil went over his face and body causing, among other things, serious disfigurement to his face.
McCrary testified that he did not know that Harold was using the three-point hitch, though he knew that was one of two ways of lifting the disks, the other way being out of repair. He said Harold did not tell him about the tractor 'rearing up' on him. He testified that the proper function of the three-point hitch was to lift the disks when the tractor was being moved from one place to another.
The jury made extensive findings. Grouped here for the sake of convenience, they were:
1. McCrary permitted Harold to use the tractor. In so doing, he was acting within the scope of his employment. He permitted Harold to use the tractor when the cylinder lift was in a known defective condition, which constituted negligence and a proximate cause of Harold's injury.
2. The defendants knew, or should have known in the exercise of ordinary care, that the defective condition of the cylinder lift could in reasonable probability cause the tractor to upset.
3. The failure to so warn Harold was negligence and a proximate cause.
4. The defendants failed to give Harold proper instructions. This was negligence and a proximate cause.
5. Harold did not permit the disks to become overloaded. (The jury did not answer the supporting negligence or proximate cause issues.)
6. Harold did not permit an excessive amount of dirt to build up in front of the disk. (Again, the supporting negligence and proximate cause issues were not answered.)
7. Harold's attempting to raise the disk while the tractor was in motion was not negligence.
8. Harold did not fail to keep a proper lookout.
9. His failure to engage the clutch was not negligence, and his failure to close the throttle was not negligence.
10. It was not an unavoidable accident.
11. Harold's father was acquitted of negligent conduct.
Then there were a number of issues which could be placed under the general heading of assumed risk:
12. The use of the tractor for disking operations under the circumstances created a danger to Harold; and the condition of the tractor was such as to (also) create a danger to him.
13. The condition of the tractor was not as open and obvious to Harold as it was to McCrary.
14. Harold knew that the cylinder lift was not in operating condition, but
15. He did not fully realize and appreciate the nature and extent of such danger. 1
16. Harold did not voluntarily expose himself to the danger.
It is clear from the special issues set out that the defendants were found to have been negligent in a number of respects; and that although many issues of contributory negligence were given, the jury acquitted Harold of contributory negligence. The Court of Civil Appeals reversed the...
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