No. 1432 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, Trespass, of Lebanon County at No. 1790 of 1976.
Thomas A. Ehrgood, Lebanon, for appellants.
Daniel K. Deardorff, Carlisle, for Heilman, appellees.
James R. Clippinger, Harrisburg, for International, appellee.
Hester, Cavanaugh and Van der Voort, JJ. Van der Voort, J., concurs in result.
[ 307 Pa. Super. Page 185]
On August 8, 1974, Douglas J. Meyer (Douglas) then aged 10 years, suffered injuries when he fell from the axle of a tractor operated by an employee of the defendants Heilman which had been manufactured by defendant International
[ 307 Pa. Super. Page 186]
Harvester Company (International). Douglas had been riding the tractor by standing on the axle holding on to the operator's seat and the headlight bar. The axle was flat on the top and the evidence indicates that one of Douglas's feet was placed on a chain wound around the axle. No fault was attributed to the tractor operator, a friend of Douglas, and Douglas had no occasion to be riding on the Heilman tractor on Heilman land other than for "the fun of it". The tractor had been engaged in a common farm activity of pulling a manure spreader and providing power thereby by means of a revolving shaft, known as a power take off (PTO). The injuries incurred by Douglas were caused by entanglement with the PTO shaft.
The tractor in question had been manufactured by International in 1952 and had become the property of Heilman from a third party some years previously. Originally that tractor had been equipped with a safety shield which had been removed by Heilman some years previously because with the safety shield affixed, the field sprayer (not made by International) could not physically be attached. Heilman also owned John Deere tractors manufactured in 1949 and 1951 which were equipped in addition to the main safety shield with a small (flipper) shield on a spring which unless in some way wired or tied up would render the PTO inoperable. On a larger tractor also manufactured by International the master shield was in place while operating a manure spreader. On the tractor in issue the PTO was only used in connection with the manure spreader and sprayer. Douglas's testimony that he had ridden on that tractor at least ten times with Heilman employees and once with a Heilman partner was not contradicted, although admittedly he never rode it before with the PTO in operation. Nor was it contradicted that he did not know then what a PTO was and that he had never been warned of it.
Douglas and his parents sued for damages predicating liability as to International under Section 402A, Restatement (Second) of Torts and as to defendants Heilman on negligence. The matter was tried to a judge and jury. At
[ 307 Pa. Super. Page 187]
the conclusion of the plaintiffs' case the court granted International's motion for a compulsory non-suit. The trial then proceeded against defendants Heilman alone and the jury returned a verdict in favor of the defendants Heilman. Post-trial motions to remove the compulsory ...