Gunn v. INTERNATIONAL HARVESTER COMPANY

• Citation: 366 F.2d 349
• Decision Date: 28 September 1966
• Docket Number: No. 16621.,16621.
• Parties: Gene W. GUNN, Plaintiff-Appellant, v. INTERNATIONAL HARVESTER COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

366 F.2d 349 (1966)

Gene W. GUNN, Plaintiff-Appellant, v. INTERNATIONAL HARVESTER COMPANY, Defendant-Appellee.

No. 16621.

United States Court of Appeals Sixth Circuit.

September 28, 1966.

Jesse E. Johnson, Jr., Memphis, Tenn., Burch, Porter & Johnson, Memphis, Tenn., Ford, Ford & Crow, Kennett, Mo., on brief, of counsel, for appellant.

James M. Manire, Memphis, Tenn., John H. Harris, Jr., Memphis, Tenn., on brief; Chandler, Manire, Johnson & Chandler, Memphis, Tenn., of counsel, for appellee.

Before O'SULLIVAN, EDWARDS and CELEBREZZE, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Appellant Gene W. Gunn, plaintiff in the action involved, appeals from a summary judgment entered in favor of defendant-appellee, International Harvester Co., in the District Court for the Western District of Tennessee. On the facts revealed and admitted in the pleadings, the discovery deposition of the plaintiff, and the affidavits on file in the case, the District Judge held that plaintiff Gunn had, as a matter of law, been guilty of contributory negligence which barred his negligence action against International Harvester. This is a diversity case.

The facts before the Court were as follows: At about 7:30 or 8:00 P.M. on June 19, 1962, plaintiff Gunn arrived with a tractor-trailer unit at defendant's loading platform in Memphis. Gunn was regularly employed elsewhere, but had been loaned to a common carrier to drive its truck on the trip here involved. He was to pick up a load of disassembled "hay dryers" and haul them to St. Paul, Minnesota, from Memphis, Tennessee. The dryers were in three sections: steel covers, some eight to ten feet long in a half barrel shape, loaded at the front of the trailer; the bodies of the dryers loaded in the mid-section; and the wheels at the rear. Gunn had had no prior experience hauling heavy machinery on an open flat-bed truck of the kind used on this trip.

The loading procedures were carried out by defendant's employees. The parts were stacked on the truck and tied down with wire. As the loading was being done, Gunn mentioned to an employee of defendant that the covers were being loaded in such a way that they would catch the wind, and otherwise questioned the manner of loading. He was told, in effect, to mind his own business and leave the loading to those who were familiar with how to do it. After three or four hours, the loading was completed and Gunn was told by those who had done the loading that everything was all right and ready to go.

Gunn made his first stop at Dyersburg, Tennessee, some seventy-five miles from Memphis. He noticed that some of the covers had shifted, and a couple of the wires had parted. He twisted the wires back together and resumed his journey, thinking that there was no serious problem. There was evidence to show that this would be the normal practice of an independent trucker carrying such a load.

When Gunn stopped at Clinton, Kentucky, he found that the covers had shifted again and some other wires had broken. He once more twisted the wires together and continued on his way. By the time he reached Cedar Rapids, Iowa, on the morning of June 21, Gunn had stopped to adjust his load at least five or six times, and possibly nine or more times, but on none of these occasions did he have any serious problems.

In Cedar Rapids, Gunn once more climbed up onto the trailer to adjust the covers and refasten the wires. However, this time while he was pushing the covers back into place, he saw a wire unravelling and before he could make a needed correction, the covers came loose and pushed him off the truck, causing the injury complained of.

Defendant's motion for summary judgment asserted that Gunn, by undertaking to drive the allegedly insecurely loaded truck and continuing to drive it after its insecurity was made apparent by the breaking of the wires, assumed the risk involved and was guilty of contributory negligence. The motion was sustained.

The Tennessee rule and the authorities announcing it are recited in Osborn, et al. v. City of Nashville, 182 Tenn. 197, 203, 204, 185 S.W.2d 510, 513 (1945):

"It is elementary that when there is material evidence that either of the parties has acted with a lack of care and the lack of care is causally connected with the injury, a jury question is created:

"`The question of contributory negligence, as well as the question of negligence, is ordinarily for the jury. Even though the facts be undisputed, if intelligent minds might draw different conclusions as to whether, under circumstances conceded, the conduct of a plaintiff was that of an ordinarily prudent man, the matter should be left to the jury. The court should draw no inference when in doubt, but only in those cases where the evidence is without material conflict, and such that all reasonable men must reach the same conclusion therefrom. It is only in cases where the evidence is susceptible of no other fair inference that the court is justified in instructing the jury, as a matter of law, that the plaintiff has been guilty of contributory negligence which would bar his recovery.\' Carey Roofing & Mfg. Co. v. Black, 129 Tenn. 30, 36, 37, 164 S.W. 1183, 1185 51 L.R.A.,N.S., 340.

"`The question of the defendant\'s liability lawfully can be withdrawn from the jury and determined by the court as a question of law, when and only when the facts are undisputable, being stipulated, found by the court or jury, or established by evidence that is free from conflict, and when the inference from the facts is so certain that all reasonable men, in the exercise of a fair and impartial judgment, must agree upon it.\' cases cited"

This rule has been consistently and expressly approved in later Tennessee cases, and by this Court: Schindler v. So. Coach Lines, Inc., 188 Tenn. 169, 175, 217 S.W. 2d 775 (1949); Williams v. Jordan, 208 Tenn. 456, 470, 346 S.W.2d 583 (1960) (dissenting opinion); Broome v. Parkview, Inc., 49 Tenn.App. 725, 732-733, 359 S.W.2d 566 (1962); Doane Agr. Service, Inc. v. Coleman, 254 F.2d 40, 43 (CA 6, 1958); see also Miller v. Chattanooga Auto Parts, Inc., 350 F.2d 851, 852 (CA 6, 1965). It is familiar general law.

Under such rule we are of the opinion that this case should not have been disposed of summarily under Rule 56 Fed.R.Civ.P. Gunn's discovery deposition and affidavit could be fairly read as indicating that he was, as a reasonably...