Ford Motor Co. v. Wolber

• Decision Date: 17 April 1929
• Docket Number: No. 4036.,4036.
• Citation: 32 F.2d 18
• Parties: FORD MOTOR CO. v. WOLBER.
• Court: U.S. Court of Appeals — Seventh Circuit

32 F.2d 18 (1929)

FORD MOTOR CO. v. WOLBER.

No. 4036.

Circuit Court of Appeals, Seventh Circuit.

April 17, 1929.

Don Kenneth Jones, of Chicago, Ill., for appellant.

Harold A. Smith, of Chicago, Ill., for appellee.

Before ALSCHULER and ANDERSON, Circuit Judges, and BALTZELL, District Judge.

ALSCHULER, Circuit Judge.

The action was against Ford Motor Company, appellant, for injury to appellee through the turning over of a farm tractor of its manufacture while appellee was operating it. The five counts of the declaration respectively charge negligence upon appellant: (1) Negligence in designing the tractor; (2) that the tractor was, to appellant's knowledge, an inherently dangerous instrumentality, and that appellant gave no notice of its dangerous qualities; (3) negligence in the design of the tractor, appellant knowing of its dangerous character; (4) that the tractor was a dangerous instrumentality and was known to be such by appellant, and no notice of the danger was given to appellant's representative who sold the tractor; (5) negligence in construction and design of the tractor.

The first four counts charged that the tractor would summersault if a sudden or heavy pull was encountered when the tractor was not attached to a load; and the fifth count charged that the tractor would summersault when the gas and power were freely applied. The defense was the general issue.

The court denied appellant's motion for an instructed verdict, and the jury found for appellee in sum of $17,000, and judgment was rendered on the verdict.

The tractor in question was sold by appellant to its dealer, from whom it was purchased by one Schultz, a farmer, whose employee, appellee, was operating it at time of accident.

If there is evidence which tends fairly to support the charge of appellant's negligence, and without contributory negligence chargeable to appellee, we are not at liberty to disturb the judgment, and this inquiry is one of fact rather than of law.

It seems that on the afternoon of the accident, when Schultz showed Wolber how to operate the tractor in the field, he warned him against letting the driving wheels "dig in" — i. e., to revolve without moving the tractor. Wolber says he was drawing a disc harrow hitched to the rear of the tractor and had harrowed most of the field before the accident occurred; and while driving across a depression a wheel of the tractor started to spin, whereupon he stopped the tractor and detached the disc harrow, and while slowly throwing in the clutch to go ahead a short distance the tractor suddenly reared up and tipped over backward, pinning him underneath.

While negligence is charged in the construction as well as in the design of the tractor, the record discloses nothing which tends to indicate any defect in materials or in parts, or in putting them together.

Is anything disclosed tending to indicate negligence in the design or plan of the tractor? Nothing whatever, save only the fact that this tractor did turn over, together with some evidence as to the turning over of another tractor of same make.

It is stated in appellee's brief that this manufacturer had put out 321,000 such tractors before this one. In the spring of 1921 Schultz purchased one of these tractors and operated it upon the same farm with evidently satisfactory results, since in October, 1923, he bought another of the same kind, the one in question, which he thereafter operated.

Schultz was a machinist as well as a farmer. For 12 years he had conducted a repair shop for automobiles, tractors, and farm machinery on his farm, and during the late war he had enlisted and had worked as a mechanic on machinery. While probably he was not a mechanical engineer, he would most likely have understood and known whether any of the parts were defective, and as constant operator as well as mechanic would most likely have known and understood any serious defect in the design and operation of the tractor. He overhauled this tractor from time to time, and kept it in what he considered proper order. In this 4½ years of constant use of these tractors, divided about equally between the first and the second machines, no occurrence took place such as the accident in which appellee was injured. All this is very persuasive that there was no negligence as charged in the design of these tractors.

A witness for appellee testified that in 1920 or 1921, in conversation with a field agent for appellant, he told the latter of an occurrence in the same vicinity whereby one Bates was injured by the overturning of one of these tractors — this in response to the agent's inquiry as to the difficulty of selling these tractors in that vicinity. There was no evidence of what the accident was beyond this story of the accident to Bates, of which the witness did not claim even first-hand knowledge. What was the cause of that tractor's turning over, if indeed it did turn over, does not appear. It may have been under conditions wholly unlike those appearing here. So far as direct evidence is concerned it may never have occurred, and if occurring the circumstances do not appear — nothing to indicate a resemblance to the accident to Wolber.

It goes without saying that at times automobiles turn over, and locomotives, and wagons, and vehicles of all kinds, and that rarely is there indication of negligence in design to account for the occurrence. And so with tractors. Operating as they do over all sorts of surfaces, it would be strange indeed that out of the 300,000 or more put out by this concern it did not appear that occasionally one turned over or sustained some other accident not attributable to negligence in design or defective materials or...