Foster v. Ford Motor Co.

• Decision Date: 17 June 1926
• Docket Number: 19550.
• Citation: 246 P. 945,139 Wash. 341
• Parties: FOSTER v. FORD MOTOR CO. et al.
• Court: Washington Supreme Court

246 P. 945

139 Wash. 341

FOSTER v. FORD MOTOR CO. et al.

No. 19550.

Supreme Court of Washington, En Banc.

June 17, 1926

Appeal from Superior Court, King County; Gilliam, Judge.

Action by E. L. Foster against the Ford Motor Company and others. Judgment for plaintiff, and named defendant appeals. Reversed with instructions.

Mackintosh J., Tolman, C.J., and Fullerton, J., dissenting.

Battle Hulbert, Gates & Helsell, of Seattle, for appellant.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for respondent.

ASKREN J.

Appellant Ford Motor Company, is engaged in the business of manufacturing Fordson tractors, which are held out to the public as being suitable for performing ordinary farm work. Defendants Irwin and wife are the owners of one of these tractors purchased from a dealer in Yakima for use on their ranch near that city. Respondent, Foster, was employed by the Irwins to work upon their ranch. His work required the use of the tractor in question, and upon the third day of his employment the tractor became deeply mired in the mud. Being unable to pull the tractor out by its own power on accounts of the wheels spinning, he secured a shovel and removed a large amount of dirt from a point underneath the rear axle which was resting upon the mud and prevented the wheels from getting traction. Being still unable to drive the tractor out by its own power, Irwin and Foster secured some planks and placed them against the rear wheels of the tractor, and Irwin, taking the operator's seat, attempted to pull the tractor out. The wheels being blocked, the amount of power exerted raised the front end of the tractor off the ground some six inches. A further attempt was then made to secure traction for the rear wheels, and Foster was ordered to drive, and Irwin took a position in front of the machine. When Foster applied the power to the tractor, the front end raised, and the tractor tipped over backwards, falling upon him and severely injuring him.

Thereafter Foster brought suit against Irwin and the Ford Motor Company. The basis of the complaint against the Ford Motor Company was that it manufactured a tractor that was imminently dangerous to life and limb of the operator, because the tractor was negligently constructed and designed, in that approximately one-third of the weight of the tractor was at the front, and two-thirds at its rear, and that it developed tremendous power, that the application of power when the tractor would become mired was sufficient to up-end it, and that the opperator sat on a seat between the two rear wheels, so that, when power was applied to the tractor, the operator's position was such that he could not prevent the tractor from up-ending.

As to the defendants Irwin, it was charged that they knew of the inherently dangerous character of the machine, that Foster did not know of it, being unfamiliar with Fordson tractors, and that they failed to notify him of it.

Appropriate answers and replies were filed, bringing the case to trial upon this issue. The jury returned a verdict in favor of Foster against both Irwins and the Ford Motor Company. The court granted the Irwins a new trial, but denied a motion of the Ford Motor Company for judgment notwithstanding the verdict, and for new trial.

The Ford Motor Company alone appeals, so that the question to be determined on this appeal is the liability of the Ford Motor Company.

The evidence established that the tractor in question does have its weight distributed approximately one-third to the front, and two-thirds to the rear, that the operator's seat is between the rear wheels of the tractor, and that the clutch pedal, instead of being in front of the operator as in an ordinary automobile, is at a point somewhat lower, expressed by one witness as 'where the operator would naturally drop his foot down to reach it.' There was evidence that several tractors had turned over when being used either upon steep grades, or where the rear wheels were blocked. The testimony of all the witnesses, however, both for appellant and respondent, was substantially to the effect that the tractor could not be tipped over except upon a very steep grade or by applying the power through engaging the clutch quickly while the rear wheels were blocked. Respondent testified upon this point that he did not have his foot on the clutch when the tractor started to up-end, and that he did not take any pains to let the clutch in slowly; that he just did it as he always did. From this it is argued by respondent that there was sufficient evidence for the jury to find that the tractor in question would up-end with the rear wheels blocked and the clutch engaged in the ordinary and usual manner. But we think that, the evidence of all the witnesses who testified upon this point being to the contrary, it must be assumed that at the time the tractor turned over the power was applied suddenly by the quick engagement of the clutch. The Fordson tractor is an 18 1/2 horse power motor, and there was no evidence that this one was in any respect different than the rest of the Fordson tractors.

At the time the Irwins purchased the tractor, they were notified by the dealer that in driving it the foot should always be kept upon the clutch, and Irwin testified upon the witness stand that he knew of this necessary part of the operation of the tractor, and that he had read portions of the manual of instructions put out by the Ford Motor Company for the use of operators of the tractor, and especially that portion under the head of 'Important Instructions,' as follows:

'Do not hitch a chain or rope around the rear axle housing under any circumstances. When pulling a heavy load, or in case the tractor becomes mired, be sure to keep your foot on the clutch pedal. Do not race the motor or let the clutch in suddenly, as this may lift the front end of the tractor off the ground. Should this happen, release the clutch immediately. This will bring the front wheels back to the ground at once. If the tractor should become mired, always pull out in low gear. Do not attempt to pull tree stumps or do any similar work that might bring the tractor to a sudden stop.'

Irwin testified that he notified Foster to always keep his foot upon the clutch pedal, but this was denied by Foster, and it must be assumed for the purpose of this decision that no instruction was given.

Appellant urges that there was no state of facts justifying the submission of the question of its liability to the jury. It urges that the evidence conclusively showed that the tractor operated according to the instructions set out in the manual would not up-end. This contention seems to be sound. But respondent insists that the manufacturer of an article, which, through its faulty construction, is imminently dangerous to human life, is responsible to any third person using it unless notice is given to the person injured. There are cases to this effect.

In Coakley v. Prentiss-Wabers Co., 182 Wis. 94, 195 N.W. 388, Hasbrouck v. Armour & Co.,

139 Wis. 357, 121 N.W. 157, 23 L. R. A. (N. S.) 876. Reviewing this and other authorities, the court said:

'In determining whether a manufactured appliance, defective in its construction, * * * is inherently dangerous, the extent and manner of its intended use must be considered. If it is one the use of which is dependent upon the use of explosive substances, that is an important matter for consideration, and the tests which would be used in ascertaining whether ordinary manufactured articles are inherently dangerous need not necessarily be applied.'

In Peaslee-Gaulbert Co. v. McMath's Administrator, 148 Ky. 265, 146 S.W. 770, 39 L. R. A. (N. S.) 465, Ann. Cas. 1913E, 392, a manufacturer was held liable for the death of a third person killed by the explosion of a can of fluid labeled 'No. 1 T. Japan Dryer.' It appeared that the manufacturer sold the can of dryer in question without any mark on it whatsoever to indicate that it was an explosive substance. The court held:

'If a dealer or merchant, whether he be a wholesale dealer or a retail dealer, or the original purchaser of the article, or the

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