Small v. Pioneer Machinery, Inc., 2748

CourtCourt of Appeals of South Carolina
Citation329 S.C. 448,494 S.E.2d 835
Docket NumberNo. 2748,2748
PartiesJames R. SMALL, Respondent, v. PIONEER MACHINERY, INC., and Timberjack, Inc., Appellants. . Heard
Decision Date04 November 1997

Page 835

494 S.E.2d 835
329 S.C. 448
James R. SMALL, Respondent,
PIONEER MACHINERY, INC., and Timberjack, Inc., Appellants.
No. 2748.
Court of Appeals of South Carolina.
Heard Nov. 4, 1997.
Decided Nov. 17, 1997.
Rehearing Denied Jan. 22, 1998.

Page 838

[329 S.C. 454] Robert L. Widener, of McNair Law Firm; and Rebecca Laffitte, of Sowell, Todd, Laffitte, Beard & Watson, Columbia; and Margaret C. Kelsey, of Quarles & Brady, Milwaukee, Wisconsin, for Appellants.

J. Marvin Mullis, Jr. and Frank A. Barton, both of Mullis & Barton, Columbia, for Respondent.


James R. Small (Small) brought this products liability action against the seller of a log skidder, Pioneer Machinery, Inc. (Pioneer), and the manufacturer of the skidder, Timberjack, Inc. (Timberjack), alleging a design defect in the log skidder. The jury returned a verdict in favor of Small in the amount of [329 S.C. 455] $500,000 on theories of strict liability and breach of implied warranty. Pioneer and Timberjack appeal contending the trial court erred in (1) failing to grant their motions for directed verdict; (2) failing to grant their motions for judgment notwithstanding the verdict (JNOV); (3) in admitting opinion testimony; and (4) in admitting certain hearsay testimony. We affirm.


Small was an experienced and skilled sawyer in the timber industry. He began working in the woods when he was fourteen or fifteen years old. On December 8, 1988, while Small was working in the forest, his chain saw became stuck in a tree when the tree "rocked down" on the saw. Small asked Sylvester Harris (Harris), a co-worker who was operating the log skidder, to help him free his chain saw by pushing against the tree with the skidder until Small could remove the chain saw. This was the normal manner of removing a chain saw on every job on which Small had been employed.

Small told Harris he did not want Harris to push the tree down because he was concerned where it might land. Rather, he told Harris to push it just enough so he could get his saw out. Harris put the blade of the skidder against the tree so he could push it. Harris pushed the tree and Small removed his saw. He then yelled at Harris to let Harris know he had the saw. Small heard the motor "rev up." The tree fell and struck another tree. Small backed up, bumped into something, and was unable to get out of the way of a falling limb from the second tree.

Small filed a complaint alleging the log skidder was defectively designed. He theorized the skidder's defective design caused the throttle to occasionally stick. He claimed the throttle allegedly stuck on the day he was injured. He further maintained the sticking throttle caused the skidder to "surge forward out of control and to push a tree over" onto him. When the case was initially tried, the court directed a verdict in favor of Pioneer and Timberjack. This Court reversed the trial court's decision and remanded the case for a new trial. See Small v. Pioneer Machinery, Inc., 316 S.C. 479, 450 S.E.2d 609 (Ct.App.1994).

[329 S.C. 456] Robert K. Taylor (Taylor), a licensed professional engineer, was qualified as an expert witness on behalf of Small. Taylor had reviewed prior deposition and trial testimony of

Page 839

Small and Harris. He related his understanding of the facts as follows:

Mr. Harris put, I believe, the left corner tip of the blade against the tree in order to have a point to push it on and at the same time be able to have as close a view of Mr. Small as he could. And he had the--the skidder in the low, low gear and was beginning--beginning to and was relieving the pressure that the tree had on the saw by pushing against it, and that during that process, the throttle stuck and provided more push than he had planned to do. It's a fairly delicate operation. And that would cause the tree to go past the point of equilibrium rather than staying on the same side of equilibrium, which means that the tree would go over.

Taylor described the design of the skidder's hood and noted some openings in the hood area. Over objection, Taylor opined the design of the skidder was such that debris, such as sticks, twigs or branches, could get into the throttle linkage area thereby causing the throttle to stick. He concluded "the sticking throttle most likely did ... contribute to or cause this accident."

On cross examination, Taylor was asked about Small's testimony he heard the engine of the skidder get louder. Taylor disagreed with the contention the only way this could happen was if Harris was depressing the throttle pedal. Taylor stated it could also happen by depressing the clutch pedal.

Sylvester Harris worked in the logging business most of his life and operated several types of logging equipment. At the time of the accident, he had been driving the Timberjack 240A log skidder for about two months. Before the accident, he had experienced occasional problems with the throttle sticking. Sometimes when Harris lifted his foot off of the pedal, the throttle "pedal wouldn't come back." Debris from the woods collected on and in the skidder. Harris cleaned this debris out of the throttle linkage area daily.

According to Harris, on the day of the accident, Small asked him to use the skidder to push the tree to help release Small's saw. Small told him not to push the tree over. The tree [329 S.C. 457] being cut by Small was leaning toward Harris as he approached it on the skidder. Harris placed the left corner of the skidder blade directly in the center of the tree. He had the skidder in first gear, low range. Because of the size of the tree, he had to give the skidder more throttle and let up off the clutch more so he could push the tree. Harris had the throttle about halfway down and was slipping the clutch as he tried to maneuver the tree. He saw Small had removed the chain saw from the tree before the throttle stuck. On direct examination, Harris described the incident as follows:

And when I started pushing, he pulled the saw out. And when he started back, I was going to release the tree, but I took my foot off the accelerator and that's when the pedal stuck and the tree--bumped it. It--the skidder bumped it a little too hard and the tree went to fall....

After the accident, Harris was too upset to check the skidder for debris. He worked the rest of the day and did not experience any other problems with the throttle. However, Harris removed debris the next morning. On cross examination, Harris admitted the driver's side door and hand throttle were missing from his log skidder. He further acknowledged neither the service nor parking brakes were operational. Harris described the sticking throttle problem as follows:

Q. And as I understand this, this problem, what would happen is you would depress the throttle pedal to go and then when you lifted your foot off the pedal, the pedal wouldn't come back with you; is that right?

A. That's correct.


Q. Now, this throttle sticking problem that we've heard about, that didn't make the skidder all of a sudden speed up, did it?

A. No, ma'am, it didn't.

Q. Rather, if you picked, let's say, half throttle with your foot, you wanted to go half throttle, you push the throttle down halfway and then you pulled your foot off, the engine would just keep on up there at half throttle right where you left it?

Page 840

A. It would stay there.

[329 S.C. 458] On the day of the accident, Harris had been having problems with the throttle but he did not mention these problems to Small. On cross examination, Harris testified as follows:

Q. All right. So Mr. Small has got his saw, which is what he came there to do, and he starts backing away from the tree. The reason you didn't just push your clutch in at that point was because the tree was already going down; right?

A. Yes.

Q. So the tree's already going and it was then when the tree is already falling that you pulled your foot off the throttle pedal; right?

A. Yes, when it--when it came off from the corner of the blade, that's when I realized it was falling over.

Q. So you're trying to balance this tree, you see Mr. Small, he's got his saw, and the tree starts falling. And the reason you knew the tree was falling was because you could see it pulling away from your dozer blade?

A. That's correct.

Q. And then you pulled your foot off the throttle pedal?

A. Correct.

Q. And that's when you realized that your throttle was stuck; am I right?

A. Correct.

Q. And you didn't take your foot off of the throttle pedal until after you noticed the tree was pushing away from your dozer blade; right?

A. That's correct.

Q. That tree was going to fall anyway, even if your throttle hadn't stuck; am I right?

A. Not right, no.

Q. Explain why I'm wrong.

A. Because if the throttle hadn't stuck, I could have balanced that tree with the clutch and the gas pedal on it. I wouldn't have pushed it as hard as I did.

Q. Okay. Well, I think we have two things going on here, and I really want to make sure that--I don't want to confuse you. I don't want to trick you. I want to make sure we hear exactly what went on there.

[329 S.C. 459] A. Right.

Q. So I want to hear your story here, Mr. Harris. We just established that you didn't take your foot off the throttle pedal until the tree was already falling down?

A. Yes, ma'am.

Q. Right? When you--and that would make sense because you wanted to keep your foot on that throttle pedal because that's what was holding that tree up?

A. That's correct.

Q. Okay. And so it wouldn't make sense that if it was starting to fall, what's the point in keeping the throttle pedal on anymore; right?

A. That's right.

Q. Okay. So you pull your foot off the throttle. What happened then?

A. When I pulled my foot off the throttle?

Q. Yes.

A. I was watching the tree and Mr. Small move out of the way at the same time. And when the throttle stuck, I still had my foot on the clutch, and that's when it bumped the tree some more, again.


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