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Clubb v. Main

DECEMBER 17, 1965.




Appeal from the Circuit Court of Johnson County; the Hon. LAN HANEY, Judge, presiding. Judgment affirmed in part, reversed in part, and remanded with directions.


Plaintiff, as administrator of the estate of Everett Vernon Clubb, filed her complaint in the Circuit Court of Johnson County, alleging that her intestate decedent was employed by defendant on his farm, that while so employed, he fell from the tractor furnished him by defendant, and suffered injuries causing his death. She charges defendant with negligence in that defendant negligently failed to furnish the deceased with reasonably safe and proper machinery, and negligently required him to operate the tractor with a seat which was loose and unstable. Defendant answered, denying the allegations of negligence, and alleging by way of "special defense" that the decedent was aware of the dangers involved and assumed the risks as an ordinary incident to the discharge of his duties. Plaintiff replied, the case was tried to a jury, and a verdict returned in favor of plaintiff in the amount of $21,000. Defendant filed a post-trial motion praying the entry of judgment notwithstanding the verdict, and in the alternative for a new trial. The court allowed the motion for judgment notwithstanding the verdict, entered judgment for defendant, and denied the alternative motion for a new trial. Plaintiff prosecutes this appeal.

There were no eyewitnesses to the occurrence. The testimony shows that on October 11, 1963, the deceased was 62 years of age, in good health, and weighed 226 pounds. He had been employed by defendant for 13 or 14 years as a farmhand, and lived on defendant's farm. He had been married to plaintiff for 29 years and they had one child, Ronald George, 15 years of age.

Plaintiff, administrator, testified that about 9:00 o'clock a.m., the deceased was driving a tractor, working in a field across a blacktop road from his house. Plaintiff testified that the deceased was "going across the ridges and was leaning to the right like the seat was leaning to the right".

Defendant, called under section 60 of the Civil Practice Act, testified that the deceased was employed by him, that he operated machinery and a tractor, that he was a good operator and a man of careful habits. Defendant, on the morning of the occurrence, saw the tractor used by the deceased, "where he wasn't supposed to be, next to the fence." About 30 minutes later, he saw the tractor in the same position. He called Buel Basham, an employee of defendant, they went to the tractor, found no one there, and shortly thereafter found the deceased lying in the field. He had been run over by the disk, attached to the tractor. An ambulance was called, the deceased was taken to the Metropolis hospital, and died a few minutes after his arrival there.

Defendant described the tractor and stated he had bought it new, in 1952 or 1953. He testified that so far as he knew, the deceased had not had any mechanical experience, but like defendant's other employees, did minor repairs on the equipment. Defendant's employee, Buel Basham, was a mechanic, and Tony Miller was in charge of taking care of defendant's machinery. Miller had recently installed the electrical system on the tractor used by deceased. Defendant's machinery was periodically inspected by defendant's employees, but not by any outside mechanics. Defendant himself had considerable knowledge of the machinery. The farm machinery was gone over 2 or 3 times a year. Defendant did not recall the last time he had seen this tractor when the motor was running; he had ridden on it about a month before for a distance of a mile, when it was being towed. At that time the motor was not running, and it was after that experience that a new electrical system was installed. This tractor was the oldest one he owned. Some time in the spring of 1963 Buel Basham and the deceased had repaired the tractor seat and had put in a new spring and bolt. Defendant sold his farm shortly after the occurrence and the tractor was sold, along with his other equipment. No repairs were made to any part of the tractor prior to the sale.

Ronald George Clubb, the deceased's 15-year-old son, testified that he had driven the tractor about a month before his father's death, and at that time the seat leaned to the right.

Two photographs of the tractor were offered by plaintiff, and admitted in evidence, showing the back of the tractor. In one photograph (Plaintiff's exhibit A) the seat is shown in an upright, verticle position. The witness who identified the photographs stated that subsequent to the making of plaintiff's exhibit A, the seat was given "a small push of the hand," and another picture was taken (Plaintiff's exhibit B). In the second photograph the seat is tilted a distance, described by the witness, as 6 to 8 inches.

Defendant, on cross-examination by plaintiff's counsel, identified a photograph that showed an exposed spring on the tractor, and stated if the seat were in proper position the spring would not be visible in the picture.

Buel Basham, by deposition, testified that the seat of the tractor was mounted so that it would fold back, that some bolts were loose and "the seat would work a little bit," that he and the deceased put bolts in it and tightened it up. He stated that the seat sits on the spring, that if the spring gets weak the seat will go down to the floor of the tractor, that a bracket keeps the seat from going sideways, that if the seat were in proper working order, it could not be moved to the right. He stated that springs would break sometimes, that he knew the spring had been replaced, but he didn't remember when this was done. He also testified that the deceased was cross-disking at the time, and "this is rougher than going with the rows."

An exhibit prepared by defendant, and admitted without objection, shows that when deceased was found in the field, identifiable tracks of the tractor and disk showed the deceased had been disking from north to south, that upon completing a run extending from the south end of the field to its northern boundary, the tractor turned to the left, or westward, that it traveled in an inverted double S curve to the south a distance of 400 feet, swung to its left for a distance of 150 feet, at which point the deceased was run over by the disk, that it then traveled several hundred feet in a northeasterly direction, coming to rest against the fence which ran along the north edge of the field. When found, the tractor was in gear, the throttle was about half open, and the motor was not running.

It is defendant's contention that there is no evidence of negligence on his part, or to support the inference that the deceased's injuries were proximately caused or contributed to by any act, or failure to act, on the part of the defendant. He further contends that the evidence fails to prove the deceased free from contributory negligence, and the only reasonable inference to be drawn from the evidence presented is that the deceased was guilty of contributory negligence, or had assumed the risk of the employment, as a matter of law.

In his brief, defendant states it is perhaps reasonable to conclude that deceased was run over by the disk, but that the manner in which he came to be run over remains a matter of conjecture. He suggests that it is just as reasonable to conclude that his fall from the tractor was occasioned by physical illness, or that a wasp or bee may have attacked him. He argues that the course of the tractor as demonstrated by defendant's exhibit (supra) is more consistent with these suggested possibilities than is a fall caused by a tilting tractor seat.

A similar contention was considered in Olsen v. Pigott, 39 Ill. App.2d 191, 188 N.E.2d 361. In rejecting the argument, the Appellate Court for the Second District, through Mr. Justice Spivey said at page 200, "It is clear that the evidence introduced did not exclude all possible causes, and leave, standing alone the conclusion that the death was caused by defendant's failure to guard the shaft and knuckles and equip the tractor with a seat. But such proof is not required. As was said in Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847, `The inquiry here is whether the result reached below was one which is reasonable on the facts in evidence, not ...

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