Swails v. Carpenter

• Decision Date: 20 July 1965
• Docket Number: 3,Nos. 1,No. 41181,2,41181,s. 1
• Citation: 144 S.E.2d 182,112 Ga.App. 117
• Parties: E. D. SWAILS v. W. C. CARPENTER, Sr
• Court: Georgia Court of Appeals

Page 182

144 S.E.2d 182

112 Ga.App. 117

E. D. SWAILS v. W. C. CARPENTER, Sr.

No. 41181.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

July 20, 1965.

Syllabus by the Court

The trial court did not err in granting the defendant's motion for a judgment notwithstanding the verdict.

R. R. Buckley, Tifton, for plaintiff in error.

Reinhardt, Ireland & Whitley, Glenn Whitley, Tifton, for defendant in error.

PANNELL, Judge.

E. D. Swails filed suit against W. C. Carpenter, Sr. The petition, as finally amended and recast, contains, among others, the following allegations:

'4. Defendant is engaged in the general operation of a farm and was so engaged on April 20, 1962. On April 20, 1962, defendant employed your petitioner to work as a farm laborer for a period of the whole daylight hours of said date, said labor to be performed and carried out as directed by defendant. Your petitioner accepted said employment and began work as directed by defendant. Defendant knew at the time of his employment that petitioner had had an injury to his leg and that the leg had some stiffness.

'5. At or about 11:30 A.M. on April 20, 1962, defendant instructed and directed to petitioner to drive an Allis Chalmers Tractor, the year model being unknown to your petitioner but which defendant knows, in harrowing a field at a depth of approximately three inches, said field being the field immediately west of the W. C. Carpenter, Jr., home, located in Tift County, Georgia.

'6. Defendant told petitioner to drive said tractor at fifth speed, the speed of which would carry said tractor across the field as directed by defendant at a speed of 12 to 14 miles per hour.

'7. Petitioner at this time did not begin to harrow said field, but instead said to petitioner, 'If you want me to drive in that speed across your field, you drive it first.' Defendant answered, 'It's alright, I want it driven in that speed because I want you to stay ahead of me as I plant.'

'8. Petitioner, after harrowing approximately one-third of said filed with the tractor as directed by defendant, plowed over an area located on the north side of said field which was less firm than the rest of the field, the area being approximately four feet in diameter and three and one-half feet deep, which petitioner later found to be an old stump hole filled with dirt and not discernible to the eye.

'9. Defendant was familiar with the land and the particular field and defendant knew or should have known that there had been stumps on the north side of said field, there being old stumps lying adjacent to this field and near the point of the stump hole, and that some years previous, unknown to petitioner but known to defendant, the stumps had been removed and placed adjacent to this field and the holes of which were approximately the same size and shape as that alleged in paragraph eight were filled with dirt. Approximately two days previously, a rain had caused the dirt in the stump holes to become softer than the surrounding area of the field.

'10. Petitioner had never been on the land and the particular field as stated in paragraph five and did not know nor had the equal means of knowing at the time petitioner was directed to plow of the danger incident thereto, nor in the exercise of ordinary care could the petitioner have ascertained the same, your petitioner having been assured that it was safe to proceed as alleged in paragraph 7.

'11. As petitioner was plowing over said stump hole as alleged in paragraph six the right rear wheel of the tractor sank into said hole suddenly and violently, jerking your petitioner off of the tractor and onto said tractor's right rear wheel, this occurring approximately five hours after petitioner began plowing said field. The right rear wheel caught petitioner and carried him down and under the wheel and upon the ground, trapping your petition thereunder.'

The allegations of negligence were as follows: '(a) in failing to provide a safe place for petitioner to work. (b) In failing to warn your petitioner of a latent defect [or] danger incident to employment in that the ground was less firm at spots over which your petitioner might travel in the course of this employment, the same being unknown to your petitioner, of which defendant knows, as per Georgia Code Section 66-301. (c) In assuring your petitioner it was safe to drive said tractor over said field in said condition. (d) In requiring and directing petitioner to drive at a speed which defendant knew to be unsafe under the conditions.'

The testimony in the case, except as otherwise indicated in the opinion, was substantially as follows: That on April 20, 1962, he lived on the defendant's farm and had been working for him about two months; that on the morning of that date the defendant instructed him to drive the tractor in fifth gear over this field; that he had been driving this tractor in 3rd gear and that he told the defendant that if he wanted him to drive in 5th gear for him to try it the first round; that after the defendant drove it in 5th gear, he got off and told him it was all right to drive the tractor in 5th gear; that he wanted him to stay ahead of him; that he drove the tractor as directed at a speed of about 12 to 14 miles per hour; that after about three hours of harrowing in that field the tractor ran into a hole and went down suddenly like it had fallen in a hole of water, throwing him off and under the right rear wheel; that he did not see the hole before he ran over it because it was filled with dirt and was level with the surrounding dirt and was indiscernible to the naked eye; that he had never been in this particular field before but knew that corn had been grown on it; that subsequent to the accident he saw some stumps lying in the adjacent pasture but does not know where they came from; that in his opinion the hole in which the tractor fell was where a stump had been pulled out and had since become filled with dirt; that he did not bog the tractor down in that field before and that the only conversation he had with the defendant that morning was when the defendant told him to drive the tractor in 5th gear.

Dalton Branon testified that on the morning of April 20, 1962, he, plaintiff and defendant were in this particular field planting corn; that plaintiff was harrowing the land and defendant was planting the corn and that he was filling guano hoppers for defendant off the back of a truck; that the north end of the field where the accident happened was soft boggy low land; that immediately prior to the accident the plaintiff bogged his tractor down in the same general area where the accident subsequently occurred and that the defendant pulled plaintiff's tractor out of the mud and told plaintiff not to go back in there, for plaintiff to leave it off and he (defendant) would get it later himself, that it was so wet; that the very next round the accident occurred in the same vicinity as where plaintiff had previously bogged down; that he didn't actually see plaintiff at the time plaintiff fell from the tractor, but heard defendant holler for help and that he assisted in pulling plaintiff from beneath the left rear wheel of the tractor and getting plaintiff to the hospital.

W. C. Carpenter, Sr., the defendant, was called for cross examination by the plaintiff and testified that several days prior to April 20, 1962, he employed plaintiff to drive a tractor for him; that on April 20, 1962, he had the plaintiff harrowing land with a tractor in a 30 acre field near the home of W. C. Carpenter, Jr.; that he had owned the land since 1935, except for a few years that he let his son have it; that he had walked and plowed over the field many times in the past and was familiar with the field, that he plowed over the field and the area where the accident occurred approximately three weeks prior to the accident; that there had been one big rain the last of March and could have been other rains; that several days prior to the accident he told plaintiff to drive the tractor in 5th gear so it would pulverize the ground real good; that on April 20, 1962, between 10 and 11 a. m. the plaintiff was involved in an accident at the north end of the field; that he did not see the plaintiff fall from the tractor but just happened to look up and see the tractor stopped and figured that the plaintiff had bogged down again so he picked up his plows and drove down to plaintiff's stopped tractor; that as he approached the tractor he saw the plaintiff's foot sticking from underneath the left or west side of the tractor; that he immediately jumped from his tractor and switched off the tractor that was on top of the plaintiff and he and Dalton Branon got the plaintiff from beneath the tractor; that he had not noticed the plaintiff previously to this accident except the time when he bogged down just a little before this accident; that he talked with the plaintiff when he pulled him out of that place just previous to the time of this accident; that there were no trees in this field except three or four little pine trees at the north end of the field and there had not been any trees in that field since 1935. With reference to the stumps located in the pasture adjacent to this field he testified that some of those stumps might have come out of the field but most of them came out of the pasture.

The evidence shows, without dispute, that the last stump was pulled from the field involved in the year 1935, and that the stump holes were filled with dirt; that the stump hole involved in the present case was also filled with dirt and was undiscernible to the naked eye. There is no evidence that the defendant knew of this particular stump hole or remembered its location over a period of more than 25 years. There is no evidence...