Lynch v. Hill

• Decision Date: 30 July 1969
• Docket Number: No. 1,No. 54020,54020,1
• Citation: 443 S.W.2d 812
• Parties: G. Roy LYNCH and Ruth B. Lynch, Respondents, v. Charlie HILL and John Lynn, Appellants
• Court: Missouri Supreme Court

Page 812

443 S.W.2d 812

G. Roy LYNCH and Ruth B. Lynch, Respondents, v. Charlie HILL and John Lynn, Appellants.

No. 54020.

Supreme Court of Missouri, Division No. 1.

July 30, 1969.

W. F. Daniels, Fayette, for respondents.

Terence C. Porter, Columbia, for appellants, Welliver, Porter & Cleaveland, Columbia, of counsel.

HOUSER, Commissioner.

Charlie Hill and John Lynn were jointly sued by Roy Lynch for $50,000 for personal injuries (Count I) and by Ruth Lynch for $10,000 for loss of consortium (Count II), resulting from an accident in which Roy Lynch's leg was crushed by the mechanism of a backhoe digger owned by defendant Hill and operated by his employee, defendant Lynn. A trial jury returned a verdict on Count I for Roy Lynch and against defendant Hill, the employer, for $3,112.50, but exonerating the employee Lynn, and for both defendants on Count II. Plaintiffs filed a joint motion for new trial on both counts. Defendant Hill filed motions to vacate the judgment and enter judgment in his favor on Count I. The court sustained the motion of Roy Lynch and granted him a new trial on the ground that in discharging the servant and holding the master, where the master's liability was based entirely upon the doctrine of respondeat superior, the jury rendered an improper and impossible verdict under the law. The court overruled the motion of Ruth Lynch for a new trial and overruled defendant Hill's motions. Defendant Hill appealed from the latter order. Defendant Lynn appealed from the order granting Roy Lynch a new trial.

The machine in question is a Case rubber-tired tractor with a bucket scoop attached to the front and a ditch-digging device attached to a boom at the rear. It weighs 4,000 or 5,000 pounds. There are two seats, one in front of the other. When the operator uses the bucket scoop he sits in the front seat, facing forward. When he uses the digging device he sits in the back seat, facing backward. The two seats oevelap. Only one of the seats can be used at a time. Whe the backhoe seat is 'down' (in position to use) it covers part of the front seat. To get the backhoe seat down it must be pulled up and turned around. In front of the operator seated in the back seat is a panel of hand levers. The operator's feet rest on two metal foot pedals, each about 6 by 8 or 10 inches in size, around the outside edges of which there is a guard--an iron bar which protects the operator's foot from slipping off and protects persons 'getting on when you are not supposed to.' The guard is 2 or 3 inches higher than the foot pedal. To operate the backhoe the operator, seated in the back seat, manipulates hand levers on a panel in front of him and pushes the foot pedals. The hand levers raise, lower and manipulate the digger mechanism. The foot pedals move the boom laterally in either direction, depending upon which one (left or right) is depressed. When a foot pedal is pushed down and held down a mechanism swings the boom clear around into lateral contact with the rear end of the tractor. This takes only 2 or 3 seconds. The boom will not swing around unless the motor is running. seat, facing backward. The two seats overlap. it from the left side (facing the front). There is a step for this purpose even with the rear of the motor. One cannot mount from the right because there is no opening on the right. There are no steps in the back; the machine is not designed to be mounted from the rear. Although possible it is dangerous to mount from the rear. In so doing one would probably step on the guard before stepping on a foot pedal. In order to step on the pedal it would be necessary to step up 2 or 3 inches, over the guard.

On the morning of the accident defendant Lynn was digging a ditch for a sewer line from the street in front of a church parsonage to the parsonage building. The pastor and Roy Lynch (hereinafter 'plaintiff'), who was a deacon in the church, showed defendant Lynn where to dig the ditch. The parsonage sat up on a high bank. After digging from the street into the bank it became necessary to move the machine to the top of the bank so the trench could be dug back into the yard. Defendant Lynn was not familiar with the circuitous route which had to be taken to reach the yard up on the high bank. This involved driving the machine down the street and through an alley. Plaintiff testified that defendant Lynn got down the street and came to where plaintiff was standing, about 4 feet to the right of the right rear wheel of the tractor, and asked plaintiff how to get up on the bank. Plaintiff told him 'the best he could' but defendant Lynn did not seem to understand. Defendant Lynn then said, 'You come on and show me how to get up there,' and at the same time 'motioned up' towards the backhoe seat of the digger, which at that time was 'down flat,' that is, in position for use. Although defendant Lynn did not actually tell plaintiff in so many words to climb up on the tractor, plaintiff understood that Lynn intended for him to do so, and seeing that the backhoe seat was in position for use, plaintiff walked to the rear of the machine, placed his left foot on a stablizer bar, which was down at the time, and stepped up on the machine with his right foot, intending to sit in the backhoe seat. The only place he saw to step was 'a little plate up on top, right in front of that seat.' The 'plate' was one of the foot pedals. The motor was running. When plaintiff stepped on the foot pedal the boom immediately activated, swung around quickly, catching and mashing plaintiff's left leg between the boom and the chassis of the tractor.

Defendant Lynn's version of the facts: He got off the tractor, talked to plaintiff about how to move the equipment to the upper level of the property, made no statement to plaintiff about riding the machine or going with him, climbed back on the tractor and started to move down the street when he heard the boom start to move. He turned and saw plaintiff with one foot on the pedal. He tried unsuccessfully to step on the other pedal but it was too late. According to defendant Lynn kthe backhoe seat was up (not in a position for use) and the stabilizer bars were folded up against the boom at the time (in which position it would have been very difficult to use a stabilizer bar as a step in mounting the rear of the tractor).

On this appeal defendants seek outright reversal of the judgment and entry of judgment for them on four grounds.

First, defendants claim that plaintiff was guilty of contributory negligence as a matter of law. They point out that plaintiff made these admissions: that Lynn did not tell him specifically to climb upon the tractor; that the motor was running when he started to board it; that he had seen the machine operate that day and for three or four days previously; that he did not ask defendant Lynn where he was to ride on the tractor; that he had never seen anyone ride the tractor in the position he intended to assume; that he did not normally make a practice of 'going around climbing on machines like that' and that it would be dangerous to do so. Defendants cite texts and cases ¹ for the proposition that one who voluntarily and unnecessarily assumes a position of danger cannot recover for an injury arising out of a risk incident to the position if the danger is obvious and he understands and apprecitates the hazards involved. Defendants claim that the issue of whether plaintiff exercised ordinary care for his own safety is not debatable; that reasonable minds could not differ on the question of his negligence in suddenly and without prior announcement attempting to climb upon a heavy and complicated machine, with its motor running, in disregard of what effect this might have on the movement of operating levers and mechanisms used to activate the various parts.

Defendants' authorities are not apposite. They involve persons experienced in the handling and use of the machinery or facility causing their injuries and situations in which there was an open and obvious condition as well known to plaintiff as to defendant. Plaintiff was neither knowledgeable nor experienced in the characteristics and operation of this machine.

Only when reasonable minds could not differ as to plaintiff's negligence may contributory negligence be established as a matter of law. Helming v. Dulle, Mo.Sup., 441 S.W.2d 350 (Decided May 12, 1969). Reasonable minds could differ on the question whether plaintiff was guilty of contributory negligence. From the evidence the jury reasonably could find the following: Defendant Lynn asked for information plaintiff was at hand to impart. It involved giving directions. Plaintiff gave defendant Lynn directions which Lynn seemingly failed to comprehend. Finally Lynn issued to plaintiff an invitation which, coupled with a motion of his hand or arm in the direction of the machine, could be interpreted as an invitation to mount the machine, take the vacant seat on the machine, and accompany Lynn to show him the route kto the upper level. Plaintiff looked and saw the seat, which was down and ready to be occupied and 'there was the logical place. The only way (he) could have got up there was to step up on the beam and on up to the top there.' The vacant seat appeared to be waiting for him to occupy it. That is where he intended to sit. Plaintiff did not know that the tractor was designed to be mounted from the left. He was not warned or instructed that it should not be mounted from the rear. While he had casually observed the machine in operation and knew generally its function and operation, he had no detaileld knowledge of the manner in which it was activated, or that foot pedals caused the boom to swing laterally; or that the 'plate' on which he stepped was in reality a foot pedal or that depressing the 'plate' would activate the boom and cause it to collide with the rear end of the tractor if the motor was running. There was no open and obvious condition...