J. C. Lewis Motor Co. Inc. v. Williams

Full title: J. C. LEWIS MOTOR COMPANY INC. v. WILLIAMS

Court: Court of Appeals of Georgia

Date published: Mar 7, 1952

69 S.E.2d 816 (Ga. Ct. App. 1952)

69 S.E.2d 816

Opinion

33832.

DECIDED MARCH 7, 1952.

Action for damages; from City Court of Savannah — Judge Heery. September 4, 1951.

Lewis, Wylly Javetz, for plaintiff in error.

Bouhan, Lawrence, Williams Levy, contra.

Under the allegations of the petition, the plaintiff came within the class of persons to whom the defendant owed a duty to exercise reasonable care to inform them of the danger of using the tractor and transplanter as a unit in the absence of the U-shaped exhaust pipe; for, from facts known to it, through its agents and employees, it should have realized that the use of the machinery as a unit without the U-shaped exhaust pipe was likely to be dangerous, and that the plaintiff and her husband did not, under the facts alleged, realize the danger; and, as against general demurrer, the petition set forth a cause of action.

DECIDED MARCH 7, 1952.

Mrs. Alvarin Williams brought an action for damages against J. C. Lewis Motor Company Incorporated. The material allegations of the petition are substantially as follows: Sometime during December, 1949, the plaintiff's husband purchased from the defendant at Savannah a Ford tractor for use in his farming activities. The tractor is propelled by gasoline. Subsequently, in February, 1950, the plaintiff's husband purchased from the defendant at its tractor branch what is known as a "Griffin lift type transplanter," which is used and intended to be used in conjunction with the tractor. This type transplanter is used principally in transplanting tobacco. It is attached to and towed by the tractor. In transplanting tobacco two persons occupy seats on the transplanter about two feet apart and abreast of each other. A third person operates the tractor. The seats on the transplanter when attached to the tractor are about three feet from the rear end of the tractor which is operated by a gasoline motor. The exhaust pipe of the tractor is located at the rear and on the right-hand side just below the axle of the tractor. The person occupying the seat on the right side of the transplanter sits with his head about three feet above the exhaust pipe and about three feet to the rear of the exhaust pipe. As the tractor pulls the transplanter, the workers occupying the transplanter bend forward directly behind the tractor and alternately plant tobacco plants in the furrow made by the transplanter as it moves along. In so bending over, the person on the right-hand seat necessarily brings his head within a distance of two or three feet of the exhaust pipe and practically on a level with it. The exhaust pipe of the tractor sold to the plaintiff's husband emits fumes which contain carbon monoxide, an odorless, colorless, poisonous, and deadly gas. In order to protect persons occupying the transplanting machine, a piece of metal equipment is or should be furnished along with the transplanter, known as a "U" pipe. This device fits over the exhaust pipe to divert the fumes to the side of the tractor and away from the faces of persons riding on the transplanter. On or about February 23, 1950, the transplanter was delivered to the plaintiff's home by two employees of the defendant corporation, who were acting within the scope of their employment. The U-shaped pipe, which is a necessary part, or equipment, for the transplanter, was brought with the transplanter to the plaintiff's home, but was not delivered through the negligence or oversight of the defendant's agents and employees, who put it back on the delivering truck and took it away. When the plaintiff's husband observed that the U pipe had not been delivered with the transplanter, he made a trip to Savannah and called on the defendant two or three days after the delivery of the transplanter. At the time of his visit he was informed by an employee of the defendant, acting within the scope of his employment, that a check would be made and the U pipe delivered to the plaintiff's husband. The pipe was not delivered. Approximately a week later, the plaintiff's husband again called at the office of the defendant, at which time he was told by an employee of the defendant that the pipe could not be located, but that a replacement would be ordered for him. Shortly thereafter the plaintiff's husband was again informed by an employee of the defendant at its place of business that the U pipe had been ordered and that it would be delivered to him as soon as it arrived. On April 3, 1950, the plaintiff's husband informed an employee of the defendant, whose name he is advised is Pearee, that he needed the U-shaped pipe shortly, and that he planned to transplant tobacco the following week. The defendant through said employee was well aware of the purpose of the plaintiff's husband in that respect. This conversation with the employee took place at the farm of the plaintiff's husband when Pearee delivered another piece of farm machinery to the plaintiff's husband. The defendant knew of the use of the transplanter without the attachment. Neither the plaintiff nor her husband was aware of the lethal qualities of the fumes emitted by the exhaust pipe on the tractor or of the grave danger of breathing the fumes while using the transplanter in the fields. Neither the plaintiff nor her husband was ever informed, warned, or advised by the defendant, and the plaintiff did not otherwise know, that the use of the transplanter without the U pipe attached to the exhaust of the tractor was highly dangerous. At the time of the delivery of the transplanter, the defendant furnished the plaintiff's husband with a set of printed instructions for the operation of the transplanter. These instructions contained no warning, nor did the defendant's employees warn the plaintiff's husband, with respect to the danger of failing to attach the U pipe. The only instruction given to Mr. Williams in the printed instructions with respect to the exhaust deflector was as follows: "To turn exhaust fumes from transplanter operators, put U-shaped pipe (exhaust deflector) on tail pipe." Unknown to the plaintiff and her husband, the transplanter was a highly dangerous instrumentality to persons on it when operated without such device or attachment. During the last week in April, 1950, the plaintiff's husband placed the transplanter in operation on his farm. At that time the plaintiff occupied the left-hand side while the plaintiff's husband occupied the right-hand side of the transplanter. A third person drove the tractor.

The day in question was somewhat airy and no ill effects were suffered by the plaintiff or by her husband. A few days later, on May 3, 1950, the plaintiff's husband again placed the tractor and the transplanter in operation. On that occasion, the plaintiff's husband operated the tractor; the plaintiff sat on the right-hand side of the transplanter, and a third person occupied the left-hand seat. The day was still, with little breeze. On this occasion, unaware of its presence, the plaintiff inhaled fumes containing carbon monoxide gas. When the work was finished, the plaintiff dismounted from the transplanter and suddenly collapsed and became unconscious as a result of carbon monoxide poisoning, from which she suffered enumerated injuries. The plaintiff's injuries were the proximate result of the negligence of the defendant in: (a) selling the plaintiff's husband a transplanter without delivering to him or providing therefor the U-shaped pipe necessary and intended for diverting deadly carbon monoxide fumes away from persons sitting on the right of the transplanter and in close proximity to the exhaust pipe of the tractor; (b) failing to instruct or warn persons with respect to the danger attendant upon the use of the tractor and the transplanter without such U-shaped pipe when the necessity of such warning should, in the exercise of ordinary care, have been known to the defendant as an experienced dealer in such equipment; and (c) failing to warn the plaintiff's husband of the danger of carbon monoxide poisoning in using the transplanter and tractor without the U-shaped pipe attached, when the defendant was apprised of the intention of the plaintiff's husband to use it in such condition in his planting. The plaintiff alleged further that she was at all times in the exercise of ordinary care and did not contribute to her injuries by any negligence on her part. She is of limited education, having gone through only the fifth grade. She is not familiar with modern gasoline-propelled machinery, and was not aware of the presence of carbon monoxide gas in the exhaust fumes or of any danger to her health in riding on the transplanter under the circumstances.

The defendant's general and special demurrers to the petition were overruled, and it excepted.

CARLISLE, J.

"One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or [expect] to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows, or from the facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied; (b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so." Restatement of the Law of Torts, Vol. II, 1039, § 388. Applying this rule, which is recognized as the law in this State (see Moody v. Martin Motor Co., 76 Ga. App. 456 46 S.E.2d 197), to the allegations of the petition, it is clear that the petition states a cause of action against the defendant. The defendant vendor supplied the tractor and transplanter directly to the plaintiff's husband to be used as a unit, but failed to deliver the U-shaped exhaust pipe which was necessary to deflect the exhaust fumes from the faces of persons riding on the transplanter. The U-shaped exhaust pipe was needed only when the tractor was used in conjunction with the transplanter. The transplanter was provided with places, or seats, for two persons to ride while engaged in the job of transplanting tobacco or other crops. The person who occupied the seat on the right-hand side of the transplanter was directly behind the regular exhaust pipe of the tractor, and, as he worked, he leaned forward, bringing his face within two or three feet of the regular exhaust pipe and approximately on a level with it. The U-shaped exhaust pipe, which should have been provided by the defendant, was supposed to be attached to the regular exhaust pipe of the tractor, when used in conjunction with the transplanter, so as to carry off the exhaust fumes to one side and out of the range of the persons working on the transplanter. The defendant necessarily knew that at least two persons would be in the vicinity of the tractor's regular exhaust pipe when used in conjunction with the transplanter, as two seats were provided on the transplanter for the use of such persons. The defendant owed persons occupying those two seats a duty to protect them from the deadly exhaust fumes of the tractor. It could have fulfilled that duty by supplying the U-shaped exhaust pipe to be fitted over the regular exhaust pipe. The plaintiff came within the class to whom that duty was owed by the defendant, as she at the time she sustained her alleged injuries was occupying the right-hand seat of the transplanter directly behind the regular exhaust pipe of the tractor. According to the allegations of the petition, the defendant, through its agents and employees, knew or should have known that the exhaust fumes emitted by the tractor were highly dangerous to the health of a person riding on the transplanter when the U-shaped exhaust pipe was not in place; and, after the plaintiff's husband had announced his intention to the agent and employee of the defendant to use the tractor and transplanter in combination, without the U-shaped exhaust pipe, the defendant should have known that he did not realize the danger of so doing, nor would a person undertaking to ride on the transplanter in the absence of the U-shaped exhaust pipe; and according to the petition, the defendant was negligent in failing to warn the husband of the danger upon using the machinery in combination with the U-shaped exhaust pipe. Whether or not the defendant was in fact negligent in the regards charged is a question for the jury. See, in this connection, King Hardware Co. v. Ennis, 39 Ga. App. 355 ( 147 S.E. 119); Atlanta Gas Light Co. v. Davis, 80 Ga. App. 377 ( 56 S.E.2d 140).

It should be noted that the tractor here was not being used as a separate, independent unit of machinery for which it was normally fit, or in a manner in which such tractor was normally capable of safe use without the U-shaped exhaust pipe being attached, or any other particular precaution being necessary in that regard.

Whether or not the plaintiff was contributorily negligent in riding on the transplanter without the U-shaped exhaust pipe being in place, or whether or not the plaintiff's husband was negligent in using the machinery without the U-shaped exhaust pipe, and whether or not the negligence of either or both the plaintiff and her husband was the proximate cause in fact of the plaintiff's injuries, are questions for the jury. The plaintiff, however, alleged that both she and her husband were ignorant of the fact that exhaust fumes from the tractor contained the lethal carbon monoxide gas and that it was dangerous to work on the transplanter, drawn by the tractor, without the U-shaped exhaust pipe in place; and as against demurrer these allegations must be taken as true.

The defendant relies particularly on the case of Ford Motor Co. v. Wagoner, 183 Tenn. 392 ( 192 S.W.2d 840, 164 A.L.R. 364). That case, as well as the other cases cited by the defendant in its briefs, is distinguishable by the particular facts involved.

The court did not err in overruling the general demurrer to the petition, and the assignments of error on the overruling of the special demurrers were expressly abandoned by counsel for the defendant.

Judgment affirmed. Gardner, P. J., and Townsend, J., concur.