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MICHAELS v. TUBBS (04/13/72)

decided: April 13, 1972.

MICHAELS, APPELLANT,
v.
TUBBS



Appeal from judgment of Court of Common Pleas of Clearfield County, Nov. T., 1966, No. 512, in case of Anne Mae Michaels, administratrix d.b.n. of the estate of George William Michaels, Jr. v. Blake Tubbs.

COUNSEL

Carl A. Belin, Jr., with him Belin and Belin, for appellant.

Joseph J. Lee, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding and Cercone, JJ. Opinion by Cercone, J.

Author: Cercone

[ 221 Pa. Super. Page 257]

George William Michaels, Jr., a minor of fifteen years of age, was employed by the defendant, Blake Tubbs, as a summer chore boy on the Tubbs' farm in Clearfield County, Pennsylvania.

On August 31, 1965 the defendant sent his son David, age sixteen, and George to spread manure on a field leased by the defendant, which field was located one mile away from the Tubbs' farm. Each boy was driving a tractor, with George's tractor being slower and having an additional heavy forklift attachment which extended out five feet to the front. To reach the leased field the boys were required to operate their tractors over a freshly graded dirt township public road.

After finishing their chores in the field, the boys started back to the Tubbs' farm. It was raining. While operating their tractors on the public road, which had become muddy, George's tractor left the road and went down the embankment bordering the road, his tractor toppling over him and causing his death. Upon seeing George's badly mutilated head and brain matter exposed, David Tubbs drove to the nearest house, that of Kim Anderson, for help. There were no witnesses to the accident except the Tubbs boy.

The road traveled by the boys was only eighteen and three-quarters feet wide. The tractors were each seven feet wide. The road at the place of the accident was

[ 221 Pa. Super. Page 258]

    bounded on one side by a ditch and on the other side by an embankment which dropped off. There were no guard rails on either side of the road.

Suit was instituted by the deceased boy's personal representative against Blake Tubbs. Liability of Tubbs for decedent's death was based upon the personal negligence of Blake Tubbs and the negligence of his servant and employee David Tubbs, his son.

After completion of evidence at trial defendant made a motion for binding instructions in his favor, which motion was granted. The trial court accordingly directed a verdict for defendant. Plaintiff then moved to remove the directed verdict ...


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