Hill v. Sparks

Missouri Court of Appeals · 1976 · Torts

TortsNegligenceWrongful deathContributory negligenceDuty to warnNew trialwrongful deathearth moving machine

Facts

At a field demonstration of heavy construction machinery, Patricia Hill briefly operated an International Harvester E-200 pay scraper with her brother, Wayne Sparks, instructing her. After she stopped and said she was afraid of the machine, Sparks took the operator's seat and told Patricia to stand on the machine's side ladder while he drove it downhill over rough, previously disturbed ground. As the scraper gathered speed, bounced, and struck a dirt mound, Patricia was thrown from the ladder in front of the left front wheel and was run over. Sparks had several seasons of scraper experience, knew the machine's rough operating propensities, and had heard Patricia's husband warn that a rider falling from the ladder could go under the wheel.

Issue

Whether plaintiffs made a submissible negligence case sufficient to support the trial court's discretionary order granting a new trial on the ground that the defense verdict was against the weight of the evidence. More specifically, whether the danger of riding on the scraper ladder was so open and obvious that Sparks had no duty to warn and Patricia was contributorily negligent as a matter of law.

Rule

When a trial court grants a new trial because the verdict is against the weight of the evidence, appellate review is limited to abuse of discretion, and no abuse exists if the plaintiff made a submissible case. A danger is not necessarily open and obvious as a matter of law when the risk arises from the dynamic operation of machinery, including its speed, terrain, and operating characteristics; under such circumstances, the defendant's superior experience may create a jury issue on duty to warn and negligent instruction, and the plaintiff's contributory negligence is likewise ordinarily for the jury rather than established as a matter of law.

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At a farm equipment expo outside Des Moines, Owen Mercer, who had operated self-propelled trenchers for years, told his cousin Leah Boone to stand on a side foothold while he drove a trencher across deeply rutted ground so she could watch the controls. Leah had used compact tractors before but had never ridden on or operated a trencher. When the machine accelerated over the uneven surface, it jolted sharply and Leah fell off, suffering serious injuries.

If Leah sues Owen for negligence based on failure to warn and directing her to ride there, which is the strongest argument against Owen's claim that the danger was open and obvious as a matter of law?

Explanation. The majority distinguished static premises-condition cases from injuries caused by the dynamic operation of machinery. Where the risk depends on speed, terrain, and operating characteristics, the danger is not necessarily open and obvious as a matter of law. An experienced operator with superior actual knowledge may have a duty to warn or may be negligent in instructing a novice to ride in a risky position.