Morrow v. Trailmobile, Inc.

• Decision Date: 31 August 1970
• Docket Number: CA-CIV,No. 1,1
• Citation: 12 Ariz.App. 578,473 P.2d 780
• Parties: Frances MORROW, Appellant, v. TRAILMOBILE, INC., an Arizona corporation, and Pullman, Incorporated, an Arizona corporation, Appellees. 969.
• Court: Arizona Court of Appeals

Page 780

473 P.2d 780

12 Ariz.App. 578

Frances MORROW, Appellant, v. TRAILMOBILE, INC., an Arizona corporation, and Pullman, Incorporated, an Arizona corporation, Appellees.

No. 1 CA-CIV 969.

Court of Appeals of Arizona, Division 1, Department B.

Aug. 31, 1970.

Rehearing Denied Oct. 2, 1970.

Gorey & Ely, by Herbert L. Ely, Phoenix, for appellant

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by Thomas A. McGuire, Phoenix, for appellees.

HAIRE, Judge.

By a complaint sounding in negligence, strict tort liability and breach of warranty, plaintiff, the widow of Albert Morrow, commenced a wrongful death action against the defendants, who were the manufacturers of the semi-trailer and full trailer between which Mr. Morrow was fatally injured as he was attempting to connect those vehicles. The trial court directed a verdict for the defendants at the close of plaintiff's case, and plaintiff has appealed therefrom.

The evidence when viewed in a light most favorable to the plaintiff and with all inferences drawn in her favor reveals the following facts. Albert Morrow (hereinafter, Morrow) was employed at the Serape Gin in Chandler, Arizona. Shortly before his injury, Morrow was helping driver Loren Babcock, an employee of Cromwell Transportation, Inc., unload his cargo of unginned cotton into an underground storage pit. Babcock was driving 'doubles' that evening, that is, the tractor or power unit he was driving was pulling two cargo-bearing vehicles, a semi-trailer and a full trailer. The semi-trailer was connected directly to the tractor. The full trailer was attached to the back of the semi-trailer by means of a hinged drawbar or tongue on the full trailer which fit over a hook located on the back of the semi-trailer. In the process of unloading, the trailers had been disconnected from each other, and at the time of the accident Morrow was assisting in rehitching them. In order to successfully rehitch the trailers, it was necessary that the drawbar on the front of the full trailer be raised slightly above the level of the hook on the back of the semi-trailer so that an opening or 'eye' in the front of the drawbar could be brought down over the hook.

The following testimony of the truck driver, Babcock, describes what next occurred:

'Q And would you tell us just what conversations you had with Mr. Morrow before you started this process of hitching up the trailers?

'A Well, it was dark, and I couldn't see, so I told him--I didn't know what his name was at the time--he was a redhaired boy, and I called him, 'Red'.

I told him, 'Let's get a board and put under the tongue of that trailer, and if I know (knock?) it down I can always pick it up and put it back up there.'

I said also, 'I'd not like to hurt somebody or kill somebody with this truck.'

He said, 'Well, I have done it a year or better and nothing has ever happened.'

And I told him there was a first time for everything.

'Q Now, did you then start after this conversation and he said that he had done it before?

'A Well, I kind of hesitated for a few minutes or a few seconds, rather, urging him to get a board so he wouldn't have to get between those trailers, but he insisted on getting in there and hooking it up, and then he said, 'Well, let's hook them up. There is another truck there sitting back there waiting to unload, and I have got to get it out, too.'

So then I went ahead, and I got in the GMC.'

Babcock backed up slowly, watching for a prearranged flashlight signal from Morrow to indicate when the two trailers were sufficiently close together. After backing as far as he thought was necessary, he set his brakes, got out of the cab and looked back again, only to see that he in fact needed to back up farther. He then proceeded again slowly, but still seeing no signal from Morrow, he became worried, stopped and got out of the cab again and went back to the area between the trailers. Although an area about 18 inches in width still remained between the trailers, he found Morrow, '* * * between the wheels on the front trailer on his knees with his arms hanging down to his sides.'

Plaintiff, Morrow's widow, subsequently brought this suit against the manufacturers of the trailer and semi-trailer, Trailmobile, Inc., and Pullman, Inc. (hereinafter collectively referred to as defendants). On this appeal from the directed verdict for the defendants, we will discuss separately the theories of liability urged by plaintiff.

NEGLIGENCE

In considering the question of negligence it is important to keep in mind that this case does not in any way involve questions concerning the liability of the decedent's employer or the driver of the truck or the truck driver's employer. They were not made parties to this litigation. We are only concerned with the alleged negligence of the manufacturers of the two trailers.

Although plaintiff's complaint alleged that defendants were negligent in the Design, construction and manufacture of the trailers, there was no evidence or contention of negligent construction as opposed to negligent design. ¹

Therefore, in considering plaintiff's negligence claim we are only concerned with the contention that the product was negligently designed.

It is well established that the manufacturer of a product is not '* * * an insurer that his product is, from a design viewpoint, incapable of producing injury.' Annot., 76 A.L.R.2d 91, 95 (1961); See also Jamieson v. Woodward & Lothrop, 101 U.S.App.D.C. 32, 247 F.2d 23 (1957); Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950); Blissenbach, a minor, v. Yanko, 90 Ohio App. 557, 107 N.E.2d 409 (1951). The manufacturer's duty is that of exercising reasonable care under the circumstances. Annot., 76 A.L.R.2d 91, 95 (1961); W. Prosser, Handbook of the Law of Torts § 96, at 665 (3d ed. 1964); Restatement (Second) of Torts §§ 395, 398 (1965).

The defendants, in urging support of the trial court's directing a verdict in their favor, seek to make much of the fact that the two agricultural flatbed ² trailers involved herein were ordered simultaneously as a We note at the outset that the evidence was clear that in order to connect the trailers it was not necessary by virtue of their design for any person to ever stand between the two vehicles while the forward vehicle was in motion and subject himself to the risk of being crushed. The drawbar of the rear vehicle could have been held at the height required to allow it to slip over the hook on the forward vehicle in any number of mechanical ways. These included (1) a chain running from the forward part of the drawbar back to the forward part (front rack) of the full trailer; (2) a jack; and (3) a 'drop arm'. The plaintiff's case was replete with uncontroverted evidence that such mechanical devices were available from or through the defendants but that Babcock's employer, Cromwell Transportation, Inc., intentionally ordered the vehicles and their connective parts ³ without such devices. The following testimony was elicited upon cross-examination examination of Mr. Cromwell:

                unit, and that the purposes for which they were initially ordered--hauling of bailed and non-bulk commodities capable of being side loaded and unloaded--did not require frequent hitching and unhitching of the two trailers.  While this assertion is, in its factual portion, supported by uncontradicted evidence, we fail to see that it is dispositive of the overall issue here, though it may be one of the 'circumstances' with reference to which the defendants' duty to exercise reasonable care is to be determined.  As we see it, the real question is this: On those occasions when these vehicles were In fact required to be unhitched and subsequently hitched back together, was a person in the position of plaintiff's decedent subjected to an unreasonable risk of harm by any failure of the defendants herein to exercise reasonable care in designing the hitching mechanism?   All the evidence presented by plaintiff requires this question to be answered in the negative
                

'Q Now, with respect to the attached drop arm or a jack attached to the tongue on a pull trailer or a full trailer, did you ever try attaching a device to the draw bar?

'A Yes, we have.

'Q Was it successful?

'A No. There were two reasons basically. Well, three. First, it adds weight. Secondly, it is either torn off. Thirdly, or more importantly, it is not adjustable, so it still wouldn't be the correct level. It will have to be a block under it or a hole dug in the ground to make it.

'Q When you ordered these trailers you knew that Trailmobile would sell or order a jack bar if you ordered it?

'A Yes, sir.

'Q You didn't want that?

'A No, sir.'

It was Cromwell's further testimony that there were two jacks at the Serape Gin on the night of Morrow's death, though this was impugned to some slight degree by Babcock's testimony, before admitting he failed to actually look for a jack, that he didn't see either of them.

Assuming that the defendants in the exercise of reasonable care should have anticipated that a person would stand between the vehicles to connect them notwithstanding the easy availability of such mechanical devices which would obviate the need for so doing, we feel that all of plaintiff's evidence clearly establishes that defendants acted prudently in discharging any such assumed obligation. The evidence As a separate and more fundamental basis for determining that plaintiff failed to prove that defendants breached any duty owed to plaintiff's decedent, we think the following language from Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950) is apropos:

discloses that the drawbar of the rear trailer was light enough to be held up at the requisite height by a worker using only one hand. So long as the drawbar was held in the approximate area of the hook, even if the person standing between the vehicles missed the hook he would strike the hitch plate on the semi-trailer and this would keep the...