Fincher v. Ford Motor Company, Civ. A. No. 73S-173(R).

• Decision Date: 19 August 1975
• Docket Number: Civ. A. No. 73S-173(R).
• Parties: Paul R. FINCHER, Plaintiff, v. FORD MOTOR COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Mississippi

399 F. Supp. 106

Paul R. FINCHER, Plaintiff, v. FORD MOTOR COMPANY, Defendant.

Civ. A. No. 73S-173(R).

United States District Court, S. D. Mississippi, S. D.

August 19, 1975.

Terrell Simpson, Poplarville, Miss., for plaintiff.

David Cottrell, Jr., Gulfport, Miss., for defendant.

OPINION

DAN M. RUSSELL, Jr., Chief Judge.

Paul R. Fincher, an adult resident citizen of Pearl River County, Mississippi, filed this diversity action against Ford Motor Company, a non-resident corporation, having a registered agent for service of process in Mississippi. Plaintiff's action on account of personal injuries received when his tractor started up in gear and ran over him is based on strict liability in tort and on ordinary negligence.

The case was tried to the Court without a jury.

Certain general facts, as developed by the evidence, are not in dispute.

Plaintiff, on January 3, 1963, purchased a new Super Dexta 2000 three cylinder tractor, Serial No. 09B72-4224, from Hawthorne Ford Tractor of McNeill, Mississippi for the sum of $2,700.00 plus sales tax. This tractor had been manufactured in England by Ford of England, an English corporation, which sold it in 1962 to Ford Motor Company, Dearborn, Michigan, hereinafter called Ford. Ford sold the tractor to Southern Tractor Sales of New Orleans, Louisiana, which in turn sold it to Hawthorne, the retail dealer from whom plaintiff purchased the tractor. Plaintiff, a skilled millwright by trade, had moved from Texas to Pearl River County for health reasons. He was generally familiar with tractors, having operated tractors manufactured by Ford, Massey-Ferguson and International. After the purchase of the Super Dexta, he became familiar with other type tractors, such as those made by Allis-Chalmers, Case and Oliver. He owned and operated the Super Dexta from the date of his purchase to the date of his injury, September 23, 1967, during which time he used it on weekends in and about his 40 acre farm, and to cut hay for nearby farmers, for which he was paid.

On September 23, 1967, Fincher drove the tractor to a field where he expected to cut hay. His wife transported him back to his home to get some tools and diesel fuel. On returning to where he had left the tractor parked, he attempted to start it by standing on the left side of the tractor and reaching across two gear levers, one a main lever and the other secondary. As he mashed on the starter button, the engine started, and the tractor, being in gear, lurched forward dragging plaintiff under its left rear wheel. Plaintiff sustained severe and crippling injuries, including a crushed pelvis, requiring hospitalization from September 23 to December 18, 1967. He remains crippled, continues to suffer pain, and his injuries, coupled with emphysema, have totally disabled him to perform any type of work. Plaintiff was 53 years old at the time of his accident.

In his complaint, plaintiff alleged that all tractors which he had previously operated would not crank while in gear. He charged that the Super Dexta tractor was unreasonably dangerous and unsafe for its ordinary and intended use because of its capacity to crank while in gear. Plaintiff specifically charged that Ford failed to use reasonable care to design and produce the tractor so that it would not start while in gear, and failed to adequately warn plaintiff that it would start in gear.¹

Although plaintiff was available to testify at the hearing, in view of his advanced stage of emphysema and physical condition, the parties stipulated to offer his deposition, taken in April, 1972, into evidence in order to shorten the length of time he would otherwise be on the stand. The Court has reviewed it as well as his testimony.

At the time of his purchase in January, 1963, Fincher had made up his mind to buy a Ford tractor, rather than any other kind. He did so without a demonstration, and Hawthorne delivered the tractor to plaintiff's brother-in-law who had a dairy in Hancock County, Mississippi adjacent to plaintiff's 40 acres in Pearl River County. Fincher admitted receiving a Dexta and Super Dexta Operators Handbook containing instructions on how to operate and maintain the tractor, but denied that it contained any warning about starting in gear. On the day of delivery, he cranked the engine only. Afterwards he and his brother-in-law used the tractor to plow approximately 90 acres of their respectively owned land. In the nearly five years of ownership and use, Fincher customarily started the engine in one of two ways: after first turning a key to activate the starter switch, he pressed the starter button with the main gear in neutral or he depressed the clutch while seated on the tractor; either way, the main gear was not engaged. He did not remember that the operating manual called for starting the vehicle while the main gear was in neutral and with the clutch depressed. He did not recall red warning lights that came on when he turned the starter key to the "on" position. He usually left the key on "on", as it was not necessary to turn it to "off" to stop the engine, explaining that it was necessary to turn the key on in starting the engine only if he had not left the key on "on", which he frequently did. Other than an initial servicing by Hawthorne, the dealer, and the replacement of the clutch at least three times by Hawthorne and another tractor dealer, Fincher performed his own maintenance of greasing, fueling and cleaning. As to what happened immediately prior to his injury, the following is quoted from his deposition:

"Q. When did you first realize this tractor would start in gear?

"A. Well, I didn't actually know that it would start in gear. Now, all Fords that I ever fooled with wouldn't start in gear. Now, this one, being a diesel . . . I never was instructed, and I imagine I never found it in the manual or never read it in the manual . . . I never was instructed by the Ford people or the dealer who sold it to me that the tractor would start in gear.

"Q. Well, did you ever start it in gear?

"A. No sir.

"Q. Well, you just said awhile ago that sometimes you wouldn't put it in neutral when you started it.

"A. I mashed on the clutch.

"Q. Well, you knew then that if you didn't mash on the clutch . . .

"A. Well, if you mashed on the clutch, you disengage all of your gears.

"Q. That's what I say.

"A. Whether it's in neutral or not, if it's in gear, you mash on the clutch, it's the same as if you put it in neutral, even in an automobile or anything else.

"Q. Sure. Now, when was the first time that you discovered that it would start in gear?

"A. When it run over me.

"Q. That was the first time that you knew about it starting in gear?

"A. Yes. I didn't have any idea that it was in gear at that time. It was my . . . customary that I . . . parked the tractor, to put everything in neutral.

"Q. Well, couldn't you see the position of the gears, to tell whether or not . . . . .

"A. Well, probably I didn't pay that much attention to it at that time. The man was fixing to open the gate and I had about forty acres of hay to cut, and my mind was on what I was going to do, and maybe I didn't pay any attention to where the shift lever was.

"Q. Were you standing on the ground?

"A. Yes sir.

"Q. And which side of the tractor were you on?

"A. I was standing on the right-hand side . . . the left-hand side of the tractor. The tractor was facing the gate . . . I was standing on this side (Gesturing).

"Q. You were standing on the left-hand side of the tractor, as the tractor faced the gate?

"A. Yes sir.

"Q. And the switch was on the opposite side from you?

"A. That's right and the starter was too."

Later in his deposition he said he assumed the gear was in neutral. Still later, he denied that he had ever started the tractor before from a standing position. In his testimony at the trial, Fincher admitted that, previously to the date of the accident, he had started the engine while standing on the ground. On the day of his accident, he had done so by reaching across the gear levers to hit the starter button, but again he did not remember whether he had left the tractor in gear, inadvertently knocking the main gear lever into gear when he reached across to depress the starter button or when he drew back from pressing the starting button. As to the latter, he thought not, as he did not remember any noise which would have come from engaging a gear lever. He also admitted that he usually started the tractor while in the driver's seat. He could not explain why he had not done so at the time of his accident. Nor did he have the brakes on, explaining that the tractor was in a depression in the road.

Representing Ford at the trial was Donald J. Campbell, a senior engineer in Ford's tractor operations. Plaintiff called him as an adverse witness. Campbell stated that the tractor purchased by plaintiff was manufactured until 1963 only in England by a separate Ford corporation. It was a three cylinder, diesel powered, all purpose tractor, selling at retail from $500.00 to $700.00 less than a comparable American made Ford tractor, Model 600, and was imported by defendant to meet other overseas imports. He attributed the lower cost of the English model to lower wages in England than in the United States. The starting procedure for both the Super Dexta and Model 600 was the same — that is, to check that the main gear lever was in neutral before turning the starter switch key, and to depress the clutch pedal before pushing the starter button or lever downwards. He admitted that the English model could be started in gear whereas Ford's Model 600 since 1939 had been equipped with a mechanical starter switch mounted in the transmission housing with a plunger to go through gates before contact, preventing the engine from starting in gear. He further admitted that the Super Dexta operating manual contained no specific warning that it could be started in gear, and, as to the safety feature on Ford's Model...