Smith v. Graves
| Decision Date | 11 March 1965 |
| Parties | Leroy SMITH, Ralph Workman and Otis Smith, Plaintiffs-in-Error, v. James E. GRAVES, Defendant-in-Error. |
| Court | Tennessee Court of Appeals |
Aaron Brown, Paris, for plaintiffs in error.
Van Dyke & Dunlap, Paris, for defendant in error.
The plaintiff below, James E. Graves, was injured when a bulldozer driven by the defendant, Otis Smith, backed into him and pinned him against a tree. The bulldozer was owned by the ddfendants, Leroy Smith and Ralph Workman, and was being operated by the defendant, Otis Smith. The bulldozer was being used to clear underbrush from the farm of one Algie Cook. Plaintiff Graves had never operated the bulldozer but was employed by the defendants, Ralph Workman and Leroy Smith, as a helper for Otis Smith.
The plaintiff's principal duties consisted of assisting in greasing the bulldozer, in making some minor repairs and in driving a pickup truck containing gasoline, oil, etc. for use in the bulldozer to and from the area where the bulldozer was being operated. A jury awarded the plaintiff a verdict of $2,000.00 against all three defendants upon which judgment was entered and the defendants have appealed and assigned error.
While the defendants have filed seven assignments of error they may be summarized into three contentions: (1) The evidence showed conclusively that the plaintiff Graves was guilty of proximate contributory negligence as a matter of law; (2) that the plaintiff James E. Graves was presumed to know of and assumed the ordinary risk of his employment and assumed the risk of injuries arising therefrom whether he was actually aware of them or not; hence His Honor the Trial Judge was in error in failing to grant and give in charge defendants' special request No. 2 based on the principle of assumption of risk; (3) that the fellow servant rule is applicable to the facts of this case and that His Honor the Trial Judge was in error in failing to give special request No. 1 of defendants based upon the fellow servant doctrine.
The defendant, Leroy Smith, owned a farm on which the plaintiff, James E. Graves, unmarried and aged 49, lived in a house rent-free. James E. Graves worked a small cotton crop on the shares; he did some work in looking after the hogs on the farm for which he received compensation at the rate of 25cents for each pig weaned. He did general farm work and served as a helper to Mr. Otis Smith who was the operator of the bulldozer.
The bulldozer work consisted of digging ponds and clearing thickets and timberland on farms in the area near Paris, Tennessee. Apparently it was necessary to move from farm to farm very often and the defendants, Ralph Workman and Leroy Smith, furnished a big truck and lowboy to haul the bulldozer from one area to another. The defendants, Ralph Workman and Leroy Smith, furnished a small pickup truck which was usually driven by the plaintiff, James E. Graves, to and from the scene of bulldozer work hauling gasoline and oil and other minor supplies for the operation and maintenance of the bulldozer. Oftentimes the plaintiff Graves would drive Mr. Otis Smith from his home to the area of the bulldozer operation in the pickup truck.
On the day in question the bulldozer had just been moved to the farm of Algie Cook. Cook and James E. Graves mounted the bulldozer along with the operator, Otis Smith, and they rode about three-quarters of a mile through the farm to a creek bank where there were some scrub timber and thickets to be cleaned up. The owner, Cook, alighted from the bulldozer and stepped over near the creek bank to show the operator the particular area he wanted cleared first.
The plaintiff, James E. Graves, testified that the operator, Otis Smith, told him to get off the bulldozer and get out of the way; that he intended to begin moving brush and trees in front of the bulldozer and that he, the plaintiff, then got off the bulldozer and got behind it standing about four feet from the bulldozer at the time the defendant, Otis Smith, put the bulldozer in operation; that instead of going forward Mr. Otis Smith backed the bulldozer up and pinned him against a tree causing him severe injuries.
The operator of the bulldozer, Mr. Otis Smith, testified that he told plaintiff Graves to get off the bulldozer and get way back or else some of the long saplings might strike him; that Mr. Graves got off the bulldozer and stepped behind and that he though he was out of the way; that Mr. Smith had to swing the front of the bulldozer around and he locked the left track so as to make the right hand pull the left side of the bulldozer around and it caught Mr. Graves' leg and pushed him against the sapling and when Graves hollered he heard him, stopped and eased the bulldozer up from against plaintiff.
Further, Otis Smith testified that it wasn't necessary for the plaintiff to be down near the scene of the operation at all; that the plaintiff had seen him operate the bulldozer dozens of times and that he did not do anything on the occasion of the injury to the plaintiff that was not ordinary and regular in the operation of the bulldozer and that there were no movements made on the bulldozer at that time that were not necessary to do the job which he had intended to do.
Thus, by way of summary, it appears that the plaintiff was standing on the bulldozer and told by the operator to get back out of the way and the plaintiff merely stepped off the bulldozer and back only four feet behind the bulldozer expecting the operator to drive the bulldozer forward and to clear the timber in front of the bulldozer. We also find the operator of the bulldozer telling the plaintiff to get off the bulldozer and get back out of the way and then moving his bulldozer in a somewhat backward position without ever looking back to see if in fact the plaintiff had gotten out of the way. The plaintiff was pinned by the bulldozer against a tree and injured. Under all these circumstances we cannot hold as a matter of law that the plaintiff was guilty of proximate contributory negligence but think that the question of plaintiff's negligence was properly a matter for the jury to determine. Therefore, the first contention of the plaintiffs-in-error is overruled.
Next we turn to the second contention of the plaintiffs-in-error, namely that the plaintiff had assumed the risk of the injuries which he actually received when he accepted employment around the bulldozer. Plaintiff admitted that he had been working around the bulldozer for five months and had seen it push over bushes and clean up ground and knew that it was a dangerous operation and that any big machinery could be dangerous whenever it was in operation. The defendants insist that by virtue of the plaintiff working around such bulldozer with knowledge that it was dangerous he assumed the risk of injury from such bulldozer and therefore the defendants are not liable in damages to the plaintiff for his injuries. They cite and rely upon the recent case of Gargaro v. Kroger Grocery & Baking Co., 22 Tenn.App. 70, 118 S.W.2d 561. On the question of assumed risk we quote from the Gargaro case as follows:
'The doctrine of assumed risk, sometimes (as in Hatch v. Brinkley, 169 Tenn., 17, 80 S.W.2d 838), referred to as incurred risk, is usually applied to contract cases growing out of the relation of master and servant, but such is not always the case. The application of the doctrine is often simply another way of applying the rule of contributory negligence, and frequently the difference between the two is merely a difference in the choice of language or style of expression. In other words, the fact that one knows of potential danger and voluntarily subjects himself thereto may and often does render him contributorily negligent if accident or injury ensues. An appropriate statement along these lines is found in Loew's Nashville & Knoxville Corporation v. Durrett, 18 Tenn.App. 489, at page 503, 79 S.W.2d 598, wherein it is said by presiding Judge Faw (page 606):
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