Lawson v. Hutcherson

• Decision Date: 29 January 1940
• Docket Number: No. 5107.,5107.
• Citation: 138 S.W.2d 131
• Parties: LAWSON v. HUTCHERSON et al.
• Court: Texas Court of Appeals

138 S.W.2d 131

LAWSON v. HUTCHERSON et al.

No. 5107.

Court of Civil Appeals of Texas. Amarillo.

January 29, 1940.

Rehearing Denied March 11, 1940.

Appeal from District Court, Hale County; C. D. Russell, Judge.

Action by L. C. Lawson against S. C. Hutcherson and another to recover for personal injuries received while driving a tractor on defendants' farm. From an adverse judgment, plaintiff appeals.

Reversed and remanded.

W. W. Kirk, of Plainview, and Dennis Zimmermann, of Tulia, for appellant.

Griffin & Morehead, of Plainview, for appellees.

JACKSON, Chief Justice.

The appellant, L. C. Lawson, instituted this suit in the District Court of Hale County, Texas, against the appellees, S. C. Hutcherson and his son, Claude Hutcherson, to recover the sum of $37,909 for personal injuries received while a minor driving a tractor for appellees on their farm.

The negligence relied upon, the injuries received and the damages sustained were fully set out in appellant's petition.

The appellees answered by general denial and alleged that appellant appeared to be twenty-one years of age, was an experienced tractor driver and hence estopped to urge his minority; they also pleaded assumed risk and contributory negligence.

No complaint is made of the pleadings and the above, together with the testimony hereafter recited, we deem sufficient for the disposition of the questions presented for consideration.

When the testimony was concluded the court peremptorily instructed the jury to return a verdict for appellees and on the verdict so returned rendered judgment that appellees go hence without day and appellant take nothing by his suit.

The appellant by proper assignments challenges the action of the court in directing a verdict and rendering judgment against him because he contends the testimony presented fact issues that should have been submitted to the jury for determination.

The record discloses that in June, 1936 the appellees were engaged in cultivating a farm consisting of several hundred acres of land, employed several hands, owned ten or more tractors and other machinery which they used in connection with their farming operations; that Claude Hutcherson had charge of and supervision over the employees, the farm, the tractors and machinery and the operation thereof; that appellees maintained on the farm a shop for the repair of tractors and machinery and Claude Hutcherson, who was a good mechanic, did the repairing himself or supervised the repairing of the tractors; that on June 19, 1936 the appellees employed appellant to drive and operate a tractor to be used in harrowing, listing and breaking land; that he was twenty years old and had operated tractors in breaking land and other farm uses in the summer time for five or six years but he was not a mechanic, had never overhauled a tractor and was not qualified to fix or repair the defects in such machines or the mechanism or parts essential to the operation thereof. Claude Hutcherson selected and furnished the tractor to be driven by appellant who operated said tractor until June 30th, eleven days, when he received the injuries for which he seeks to recover damages.

The above facts, the injuries received by appellant, the severity thereof, the time he remained in the hospital, his suffering, the expenses he incurred for hospitalization and the incapacity to work resulting from the injuries, which are permanent, are not controverted.

Appellees contend that the court was warranted in peremptorily instructing the jury to find in their behalf because the evidence was not sufficient to show actionable negligence but did disclose without contradiction that appellant was as a matter of law guilty of contributory negligence and assumed risk or in any event guilty of one of them.

The law appears to be settled that when a litigant requests the court to peremptorily instruct a verdict in his behalf he admits as true all the evidence supporting the contention of the adverse parties. Owen v. Al Parker Securities Co. et al., Tex.Civ.App., 296 S.W. 620, affirmed in Tex.Com.App., 1 S.W.2d 271.

In Coca-Cola Bottling Co v. Dickson, Tex.Civ.App., 115 S.W.2d 1223, 1224, it is held to be reversible error for the court to direct a verdict,

"`"If, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff." Dendy v. Cockerham et ux. (Tex.Civ.App.) 82 S.W.2d 756, 758.

"`To the same effect are the holdings in Texas Employers' Ins. Ass'n v. Ritchie (Tex.Civ.App.) 75 S.W.2d 942; Jackson v. Langford (Tex.Civ.App.) 60 S.W.2d 265; Gross v. Shell Pipe Line Corporation, (Tex.Civ.App.) 48 S.W.2d 377, and authorities cited.' Panhandle & S. F. Ry. Co. v. Jones, Tex.Civ.App., 105 S.W.2d 443, 444."

See also Octane Oil Refining Co. v. Blankenship-Antilley Implement Co., Tex. Civ.App., 117 S.W.2d 885; Jefferson Standard Life Ins. Co. v. Curfman, Tex. Civ.App., 127 S.W.2d 567.

Discarding all the adverse evidence the testimony is that appellant discovered the day he began driving the tractor assigned to him that the steering gear when he attempted to turn the machine to the left or to the right would lock or become fastened and to remedy this locked or fastened condition it required the exercise of more than usual or ordinary force; that some times the tractor had to be stopped and thrown out of gear in order to turn a corner; that appellant had informed appellee Claude Hutcherson the same day that there was something wrong with the steering gear and that he was having trouble and at least twice thereafter he told the appellee that there was something wrong...