Williams v. Deere and Co., 11269

• Decision Date: 24 April 1980
• Docket Number: No. 11269,11269
• Citation: 598 S.W.2d 609
• Parties: Archie WILLIAMS, Plaintiff-Respondent, v. DEERE AND COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 609

598 S.W.2d 609

Archie WILLIAMS, Plaintiff-Respondent, v. DEERE AND COMPANY, Defendant-Appellant.

No. 11269.

Missouri Court of Appeals, Southern District, Division Three.

April 24, 1980.

Motion for Rehearing and for Transfer Denied May 14, 1980.

Application to Transfer Denied June 10, 1980.

Joe Welborn, James E. Spain, Briney, Welborn & Spain, Bloomfield, for plaintiff-respondent.

W. H. Winchester, III, Blanton, Rice, Sickal, Gilmore & Winchester, Sikeston, for defendant-appellant.

PREWITT, Judge.

In this action, based on strict liability in tort, plaintiff received a $75,000.00 jury verdict and judgment. He claimed that due to a defect, a tractor manufactured by defendant rolled and injured him after he had placed its gearshift lever in "park" before alighting from it.

Defendant claims the trial court erred in not directing a verdict for it because: (a) there was no evidence of a defect in the tractor when manufactured and no evidence that the tractor was in the same condition at the time of injury; (b) plaintiff's circumstantial evidence of a defect was insufficient as it did not establish circumstances which tended to exclude any other reasonable conclusion regarding the cause of the injury; and (c) plaintiff voluntarily and unreasonably placed himself in a position of danger which directly caused or contributed to cause his injuries.

Defendant also filed before us a motion to strike from the transcript a statement of one of plaintiff's attorneys concerning the jury's view of the tractor. The record shows that at the trial defendant's counsel requested that the court allow the jury to "look at this tractor and to start it and examine it and see exactly how much force it takes for this tractor to be palced (sic) in and out of park and in and out of gears." Plaintiff's counsel stated that they had no objection to this. The trial judge and counsel discussed the details of the examination and agreed that Marvin Strapman, a John Deere mechanic and service manager who had just testified, would operate it. The demonstration is described in the transcript as follows:

"At this point the Court, jury, baliff, all attorneys and reporter are taken out on the parking lot where the tractor in question is located on a truck. The truck bed is tilted and Mr. Strapman starts tractor and backs it off truck. Mr. Spain talks to Mr. Strapman. Two or three jurors get up on tractor, with Mr. Strapman still on tractor, and do some shifting of gears.

Because of the noise of the tractor and all of the different conversations going on at the same time it was impossible to make a record of this demonstration."

Four months after the trial the parties appeared before the trial judge and plaintiff's counsel announced that he and defendant's attorney were unable to agree as to what occurred when the jury viewed the tractor. He asked the court to make a determination under Rule 81.12(c), V.A.M.R., as to what should be in the transcript. Plaintiff's counsel was sworn and over defendant's objection stated what he believed occurred. Following that, the court commented:

"There were several demonstrations taking place on the parking lot. Several jurors were on the tractor. Mr. Spain was on the tractor. Several of the defendant's witnesses were conducting demonstrations, taking the tractor in and out of gear, as was Mr. Spain, and I believe that several jurors got on the tractor and did likewise. Of course, that was impossible to record on a verbatim transcript. And therefore, I am unable to rule on the correctness of this transcript."

While no reason appears for us to doubt the truth of plaintiff's counsel's statement, we find no basis in the rules for us to consider it. His statement was not a part of the trial, and while it relates to what occurred during the trial, what the jurors saw or did could be subject to many conclusions and interpretations. What each individual juror saw might be different. We do not find any authority for the court to hold a hearing and determine after the fact what occurred during a view or demonstration. We believe that we should only consider what was recorded at the time of the view and demonstration and will not consider plaintiff's counsel's sworn statement. The motion to strike is sustained.

Plaintiff was employed by the purchaser of the tractor, Howard Chrisman. On August 30, 1975, plaintiff was using the tractor to pull a cultivator over a level soybean field. Two bolts held the cultivator to the tractor and one of them broke. Plaintiff stopped, placed a gearshift lever in "park" and got off the tractor. After determining that a bolt had broken, he looked on the tractor for a replacement bolt. Not finding one, he decided to leave the cultivator in the field and drive the tractor to get another bolt. He then unfastened the other bolt holding the cultivator and was pulling a hydraulic hose to release it from the tractor when the tractor rolled back and pinned him between one of its tires and the cultivator, causing serious injuries to a leg. Plaintiff was pinned for several hours. When he was found, the gearshift lever was not in part. Plaintiff offered evidence that when another employee was operating the tractor it "jumped out of park", and prior to the date that plaintiff was injured, he had had it "jump out of gear going down the road". Mr. Chrisman had purchased the tractor in November of 1973 from Wirley Implement Company in Dexter, Missouri. From the time he bought the tractor until plaintiff was hurt, he believed there was no substantial change made in the gears on the tractor. All repair work on the tractor during that period was done at Wirley Implement Company. Marvin Strapman, the service manager at Wirley Implement Company, stated that they did not work on the section of the transmission relating to putting the tractor in "park". They had not done any work on the transmission relating to the shifting of either level and to his knowledge they were "exactly the way they were when it came from John Deere factory." He said the purpose of park is to keep the tractor from rolling forward or backward. Mr. Strapman testified that when the lever is placed in park it is supposed to lock in place...