BEFORE DAN LEE, ANDERSON, BLASS
ANDERSON, JUSTICE, FOR THE COURT:
This case involves an appeal from a products liability suit from the Circuit Court of Hinds County. James W. Wilmoth (Wilmoth), appellant here and plaintiff below, sustained, among other things, a fractured pelvis and urologic injuries from an accident involving an 856 International Harvester Farmall tractor (tractor or 856 Farmall). He purchased the tractor from Peaster Tractor Company of Lexington, Inc. (Peaster), appellee here and defendant below. Wilmoth initially filed suit against both manufacturer and seller alleging that the brakes on the tractor caused the accident. Wilmoth and the manufacturer settled outside of court. Wilmoth proceeded against Peaster on the basis of three theories: (1) implied warranty of merchantability; (2) express warranty; and (3) negligence. The jury returned a
verdict in favor of Peaster. Aggrieved by the verdict, Wilmoth timely appealed and assigned the following as errors in the lower court proceedings:
I. THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE IN REGARDS TO IMPLIED WARRANTY OF MERCHANTABILITY.
II. THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE IN REGARDS TO EXPRESS WARRANTY.
III. THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE IN REGARDS TO NEGLIGENCE ON THE PART OF PEASTER TRACTOR COMPANY.
Finding no merit to these assignments, we affirm the ruling of the lower court.
On Friday, May 28, 1978, Wilmoth was using the 856 Farmall he purchased from Peaster to clear an area behind his house trailer in Coxburg, Mississippi. As he moved a tree, the tractor's rear tires got stuck in a slope on a hill at a ten (10) or fifteen (15) degree downhill angle. He knocked the gears in neutral, pulled the "park lock" down, and killed the engine on the tractor.
Wilmoth then requested help from his neighbor, Homer Chisolm (Chisolm), who also owned an 856 Farmall. They hooked the two tractors together with a chain and Chisolm pulled Wilmoth out of the hole, approximately 15 or 20 feet, but not all the way up the incline. Wilmoth then applied his brakes, knocked his tractor gear into neutral, killed the engine and put the park lock down on it. He unhooked the chain from the two tractors and replaced them in the tool box on the tractor. He and Chisolm stood at the site, talked, and drank coffee for a "few minutes."
Wilmoth testified that as he remounted on the left side of the tractor the following sequence of events occurred:
I put the left foot on the bottom step and reached and got the steering wheel in my left hand and started up on it. Just as I hit the floor of the deck plate of the tractor it started to move. I was in a position to sit down and I immediately did and hit the brakes and nothing happened. I immediately hit the ignition on trying to crank it and about that time I hit the hole and over the front of it I went. I don't know if the tractor cranked or not.
One of the wheels hit one of the holes that he (Chisolm) had just pulled me out of, and the jar kicked me over the front of it (the tractor). The seats that's mounted on those tractors have springs under them and they have a hydraulic cylinder on them. When that ...