Leonard v. Hare

• Decision Date: 02 June 1959
• Docket Number: No. 7113,7113
• Citation: 325 S.W.2d 197
• Parties: O. P. LEONARD, Trustee, Appellant, v. J. C. HARE, Appellee.
• Court: Texas Court of Appeals

Page 197

325 S.W.2d 197

O. P. LEONARD, Trustee, Appellant, v. J. C. HARE, Appellee.

No. 7113.

Court of Civil Appeals of Texas, Texarkana.

June 2, 1959.

Rehearing Denied June 23, 1959.

Leachman, Gardere, Akin & Porter, Henry D. Akin, Dallas, for appellant.

Ralph R. Rash, Austin, for appellee.

DAVIS, Justice.

Plaintiff-appellee, J. C. Hare, sued appellant-defendant, O. P. Leonard as Trustee, and also sued Obie Paul Leonard and Robert Woolridge Leonard as parties to said Trust, and W. D. Berry and Dale Alberts as agents of the Trust. Appellee alleged that on March 11, 1955, while working for appellant O. P. Leonard as trustee, on what is known as the Leonard Ranch in Hopkins County and about 5:00 o'clock p. m., on said date an agent of the Trust pulled up to where he was working and told him to unhitch the tractor he was driving from the drag he was pulling and take the tractor to higher ground for the night. He alleged that he had to get off the tractor onto the ground immediately behind the same in order to manipulate the machine with one hand and to pull the pin with the other. Appellee further alleged that the tractor was in a defective condition, which was known to the agent of appellant but such condition was not known to him. When appellee put the tractor in gear to cause it to roll back to loosen the tension on the coupling pin, the tractor suddenly caught in gear and rolled back upon him. He alleged that the tractor was in a defective condition in some 14 different ways. He further alleged that the tractor weighing 7,500 pounds ran backward over him and totally and permanently destroyed his capacity to labor and earn money at any time in the future.

Appellee was carried to a hospital in Sulphur Springs where he stayed for about two months. A day or two after the accident, an insurance adjuster went by to see him but he was still under an oxygen tent. The adjuster talked to his doctor and said that he returned in about a week or 10 days. At any rate, he did go to the hospital and secured a release from appellee at a time when no one was present. Appellee did not recall signing the release, but his wife said that he told her at the time that he had signed for some compensation. In the release that appellee signed, the Liberty Mutual Insurance Company paid appellee $1,062, and paid the doctors and the hospitals $3,333.

Trial was to a jury which found that appellee was employed by O. P. Leonard Trust; that the tractor appellee was using was not in reasonably safe condition; that Jake Maxwell, W. D. Berry or Dale Alberts knew, or in the exercise of ordinary care should have known, that said tractor was not in a safe condition; that such knowledge was negligence; that such negligence was a proximate cause of the injuries received by appellee on March 11, 1955; that placing of oil in the clutch housing of the tractor prior to the injury was negligence; that such negligence was a proximate cause of the injuries received by appellee on March 11, 1955; that the failure of the agents, servants and employees of plaintiff's employer to clean the oil out of the clutch of said tractor was negligence; that such negligence was a proximate cause of the injuries received by appellee on March 11, 1955; that the failure of plaintiff's employer, his or its agents, servants or employees to notify appellee of the presence of oil in said clutch of the tractor was negligence; that such negligence was a proximate cause of the injuries received by appellee on March 11, 1955; that the failure of the defendants to furnish a coupling device to be operated from the seat of the tractor was negligence; that such negligence was a proximate cause of the injuries received by appellee on March 11, 1955; that the appellee in manipulating the tractor clutch from the ground while behind the tractor was not negligent; that appellee in failing to back up the tractor and release the tension on the pin while he was still on the tractor was not negligent; that appellee did not fail to keep a proper lookout for his own safety while attempting to manipulate the clutch of the tractor at the time and on the occasion in question; that appellee was behind the tractor to manipulate the clutch to relieve the tension, he was in an unsafe position; that the appellee placing himself in such unsafe position was not negligent; that there was not a safe way in which the plaintiff could have backed up the tractor to disengage the tractor from the drag; that appellee being on the ground behind the tractor at the time he manipulated the clutch in order to back it up in order to release the tension on the pin was unsafe; that the appellee did not choose the unsafe way in which to disengage the drag rather than the safe way; that appellee did not assume the risk when he attempted to back the tractor when he was on the ground behind the tractor; that the accident was not the result of an unavoidable accident; that appellee executed a release on April 11, 1955; that appellee had insufficient mental capacity to know and understand the nature and probable consequence of his acts in executing said instrument; and, they affixed his damages at $47,500.

Appellant has perfected his appeal and brings forward 19 points of error. By his first three points he complains of the action of the trial court in overruling appellant's contention that appellee assumed the risk when he attempted to back the tractor while he was on the ground directly behind it; that appellee voluntarily exposed himself to a risk he either did or should have fully realized by attempting to release the tension on the pin in the connection between the drag and the tractor in an unsafe manner by backing the tractor while standing directly behind it; and that appellee was guilty of contributory negligence proximately causing his injuries as a matter of law. On a careful review of...