Summary of a Recent
Judicial Development in
Landowner Liability

Jury Instruction that Deceased Driver Had a Duty to Yield
to Oncoming Tractor Was Proper

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Welch v. Cabelka, 301 Fed. App'x 825, 2008 WL 5160109 (10th Cir. 2008), the Tenth Circuit Court of Appeals held that a fence constituted a "physical impediment" that prevented the defendant from pulling his tractor over any farther to the right of the road, and therefore the jury was properly instructed that the deceased motorist had a duty to stop or yield to the oncoming tractor.

Background

The widow of a motorist who died when his car struck a tractor pulling a no-till wheat drill traveling in the opposite direction on a rural road brought a wrongful death action against the tractor driver. Id. at* 1. A jury found in favor of the tractor driver after finding that the accident had occurred at a time when Oklahoma statutes did not require the use of headlights by the tractor, that the driver had flashed his tractor's lights as the motorist approached, that there was enough natural light at the time of the accident to safely tow the wheat drill, and that although the drill was three inches over the imaginary center line, there was enough room for the motorist to have passed by safely. Id. at *1-2. The plaintiff's motion for a new trial was denied, and she appealed. Id. at *1.

Arguments

The plaintiff argued that the jury's verdict was against the clear weight of the evidence, and that the jury instructions regarding Oklahoma law were erroneous. Id.

Analysis and Holdings

The court found that there was ample evidence presented to the jury for the jury to find for the defendant, and thus held that the district court did not abuse its discretion in denying the plaintiff's motion for a new trial on that basis. Id. at *4. Regarding the plaintiff's challenge to the jury instructions, the court examined the statute at issue, Okla. Stat. tit. 47 § 11-406, which governed the standard of care for the use of farm implements on the roadway. Id. at *2. It provided in subsection B,

[u]pon the immediate approach of a farm tractor or implement of husbandry which cannot be moved by the operator thereof to the far right-hand side of the roadway . . . due to the existence of any bridge or guardrail, sign or any other physical impediment which would not safely allow such tractor or implement to travel on the far right-hand side of the road, the driver of every other vehicle shall yield the right-of-way and shall immediately pull over to the far right-hand side of the road and remain in such position until the tractor or implement has passed.
Id. at *2.

The plaintiff argued that a fence did not qualify as a "physical impediment" under the terms of the statute, and thus the jury instruction on subsection B improperly created the inference that it was her husband's duty to stop or yield to the defendant's tractor. Id. at *5. The court found, however, that subsection B was relevant and necessary because the evidence showed that the defendant had moved his tractor and wheat drill to the right, and that he had moved so far to the right that the first responders could not pass between the drill and the fence running parallel to the roadway. Id. at *6. The court also reasoned that the fence was a "physical impediment" because it was a physical structure, similar to a guardrail or a sign, that would prevent a tractor from moving over any farther. Id. The court therefore affirmed the district court's denial of the plaintiff's motion for a new trial. Id.

The case was decided on December 10, 2008.