Towers v. Massey-Harris Co.

VAN DYKE, P. J.

Plaintiff-appellant is the surviving widow and sole heir of Guy A. Towers, who was killed while taking part in the loading of a combine harvesting machine upon a flatbed truck. The combine was self-propelled. Defendant-respondent Louis E. Amborn drove it up a loading ramp consisting of planks, with one end resting on the ground and the other on the rear of the flatbed. As Amborn drove up the ramp, Towers descended from the bed of the truck, from which point he had been directing Amborn and passed around to the back of the combine with the apparent purpose of seeing that all the wheels were properly on the planks. At this point he was out of sight of Amborn, but Amborn knew where he was. When Amborn had driven the combine onto the planks, it suddenly ran back down, crushing and killing Towers. Appellant brought action against the partnership of which Amborn was a member and against its partners individually, alleging that they, through Amborn, so negligently operated the machine as to cause it to back down the ramp. She pleaded this negligence generally in the sense that she made no attempt to describe exactly the negligent conduct of Amborn. At the trial appellant proved the foregoing facts. She went further and introduced evidence tending to prove a theory of negligent conduct, consisting in Amborn’s having failed to detect mechanical defects in the harvester which permitted it, during the operation, to run back down the ramp. The evidence suggested that the immediate cause of the harvester’s failure

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to proceed up the plank and onto the flatbed truck was that the low forward gear which Amborn was using was defective and jumped out, thus releasing the machine. At the close of appellant’s evidence, the trial court granted a nonsuit, and from the judgment following this appeal is taken.

Respondents ’ counsel assert that the trial court was justified in nonsuiting appellant upon each of two grounds: (1) That there was no proof of negligence on the part of Amborn, and, (2) That, as a matter of law, Towers was guilty of contributory negligence. In our view, neither ground is tenable, and the judgment appealed from must be reversed.

All of the testimony was elicited from defendants under section 2055 of the Code of Civil Procedure. On appeal, therefore, appellant may rely upon the portion of such testimony that is favorable to her and disregard the unfavorable in her attack on the nonsuit.