The Ultimate Resolution

PREFACE

This is a work of fiction.

Lake Superior, Raspberry Island, and the Apostle Islands are real, but the town of Bay Harbor and the Chequamegon Band of Lake Superior Chippewa are creations of the author.

The Hennepin County Government Center, Park Point, and Duluth are real places, but Greysolon Health Care Facility and Cherokee Tractor & Implement Company are fictional.

E. G. McKibben, L. H. Lamouria, Coby Lorenzen, and R. R. Parks, are real people who did the scientific research and wrote the articles referenced. The appellate court decisions, when citations are given, are real. National Safety Council Data Sheet No. 1-377-54 is an actual data sheet.

The authorship of ASAE Paper no. 62-633, ASAE Journal, Dec. 1962 by Lamouria, Lorenzen and Parks is gratefully acknowledged. The authorship of Kinematics and Dynamics of the Wheel Type Farm Tractor by E. G. McKibben, Agricultural Engineering, 1927 is gratefully acknowledged.

The characters are fictional. The tractor accident and the trial are fictional.

The tractor rollover problem is real.

- Dave Sullivan

DEDICATION

To the three sailboats that showed me the incredible Apostle Islands:

The 24 foot Sloop, Alibi,

The 30 foot Sloop, Golden Girl

and

The 30 foot Sloop, The Dove, which ultimately became Samoset.

A LAWYER’S TIME AND ADVICE ARE HIS STOCK IN TRADE.

-Abraham Lincoln

President of the United States

1861 – 1865

LAWYERS SPEND A GREAT DEAL OF THEIR TIME SHOVELING SMOKE.

-Mr. Justice Oliver Wendell Homes, Jr., Associate Justice,

United States Supreme Court,

1902 – 1932

"HE THAT ALWAYS GIVES WAY TO OTHERS WILL END IN HAVING NO

PRINCIPLES OF HIS OWN."

Aesop

"ALWAYS DO RIGHT. THIS WILL GRATIFY SOME PEOPLE AND

ASTONISH THE REST."

Mark Twain

INTRODUCTION

Jacob Reynolds Kingsley was a lawyer, a trial lawyer, or was he anymore? He sat in the cockpit of his forty-two foot ketch, the Resolution, at Hanson’s Marina in Bay Harbor, Wisconsin trying to figure the answer to that question. The tiny, quaint, hillside village of Bay Harbor is located on Raspberry Bay in the middle of the Apostle Islands on Lake Superior’s South Shore.

For Jake, the Apostle Islands had always been a safe haven, protection against the problems of everyday life, and a quiet hideaway where one found nature’s beauty and the solitude she provided in cathedral-like forests, secluded beaches and peaceful waters. This time Jake sought more than the usual respite that his weekend and vacation sailing had previously given him. This time he sought a permanent hideaway, not temporary solace, but permanent escape. He had dropped out. Gone. Left. And here he was. Hiding? Maybe. Running? Probably. Doing the right thing? Who knew?

He looked at the brochure from the Apostle Islands Cruise Service he had picked up at the Ship's Store. There at a glance were the Islands he loved.

Jacob Reynolds Kingsley was forty-two years old. He had no knowledge yet of the events that would determine much of his rather uncertain future. The events had begun a long time ago . . .

PART ONE: THE TRACTOR

CHAPTER ONE

Tuesday, August 11, 1964

Jimmy Owens sat atop a wood rail fence along a gravel road on the southern edge of the Ozark Mountains in northwestern Arkansas. In the distance, he could see the trees along the White River as it meandered through his family’s farm.

He watched his father and two brothers working there in the field by the road. Jimmy’s bicycle leaned against the fence where he had left it when he found them. Mother had sent him to find out where they were working. The peaceful farm scene, the warm, bright sun, and the clear blue cloudless sky gave Jimmy a sense of peace and tranquility. He liked it here on the farm. He was glad he lived here and not in some city.

The mid-afternoon Arkansas sun beat down on the three men removing stumps from a field. At a nearby fence separating an adjacent pasture, several cows were gathered watching the activity, their large brown eyes wide in curiosity. Jimmy grinned to himself at the curiosity of the cows. They were funny.

Pa sat up on the new big red Cherokee T-350 tractor looking back at the stump to which the tractor was chained. Pa had just bought it used. It was three years old and just like brand new. Jimmy could hardly wait until they let him drive the new tractor.

The other men were Jimmy’s older brothers, Matthew and Luke. They were a lot older than Jimmy. An accident, Luke called him. The boys were teenagers when he was born. They always took care of him. He adored them. They were his heroes. They knew how to do everything. Now they were working at the roots with an ax and a grub hoe. As they chopped at the roots, the taut chain kept tension on the stump.

Try it now, Pa, Luke, the younger brother, drawled as he stepped back, ax in hand watching the stump for more roots.

Don't think we've got it cleared yet, said Jimmy’s father, adjusting himself on the seat of the tractor.

Hit it, Pa! yelled the older son now, a solidly built man in his mid-thirties, Luke’s got the most of ‘em cut and we're ready to get into town for a cold one!

Matt's right, Pa! We've pulled enough stumps in this heat that we've earned a cold beer when this one's done! Besides, that new machine you're ridin' would pull this li'l ol' stump out without us slavin' back here under the sun anyway.

Jimmy’s father smiled. He turned around in the seat of the tractor to face the afternoon sun. Squinting against the sun, he applied the throttle of the tractor. The engine roared as the powerful tractor came to life fighting against the hold the stump of a tree still had to mother earth. Suddenly the front of the tractor rose in the air like a stallion in a fight.

Jimmy watched from the fence at first in surprise and then in terror as the nose of the new red tractor rose up, silhouetted against the sun. He watched his father fall backward from the seat and the tractor flip over rearward, crushing him beneath it, while Jimmy watched from the fence and Matt and Luke stood helplessly by.

It happened so fast, it was over before any of the younger Owens’s realized what happened.

Friday, August 14, 1964

FARM ACCIDENT CLAIMS LIFE

Harris, Ark. (AP) - On Tuesday, Millard Owens of rural Harris was killed when a tractor he was operating rolled over backwards, crushing him. The tractor, a Cherokee T-350, was being used by Owens and his sons to pull stumps on the Owens farm at the time of the accident.

In a St. Louis suburb, Robert England folded the newspaper and tossed it on the table in front of him. He leaned back in his chair and rubbed his eyes with his hands. Resting his feet on the coffee table in front of him, he thought about how little the article said about what really happened. He knew exactly what happened. England was a safety design engineer for the manufacturer of the T-350. He was employed by Cherokee Tractor & Implement Company.

The standard large rear-wheeled farm tractors sold by Cherokee and other manufacturers in the industry were good farm equipment except for one problem. They had a tendency to flip over backwards. The machine uses a small gear called a pinion gear that is turned by the tractor’s power from the engine and which turns the much larger gear on the wheel and causes the wheel to turn. If those big rear wheels were prevented from turning and the operator continued to apply the throttle to attempt to move forward, the small pinion gear would literally walk right around the larger gear of the wheel, taking the relatively light body of the tractor with it. The result was, of course, that the front of the tractor flipped back over the operator with incredible speed. The operator was completely unprotected and unprepared for the sudden catastrophe, which followed.

Trouble? asked his wife Mary.

Huh? He looked at her standing in the doorway between the living room and kitchen. She was a trim pleasant looking woman of middle age with a fair complexion, a few freckles and nearly orange hair. Her left hand supported her right arm at the elbow, her right hand holding a filter-tipped cigarette in two fingers, the cigarette pointing straight in the air. It was a way England had noticed that women, including Mary, seemed to hold their cigarettes when they were ready to get into a serious conversation. She blew a puff of smoke in his direction.

I said, ‘you got trouble?’ You look perplexed.

Perplexed?

The only word I could think of, she answered, but it fits. What’s up?

Oh, I’m still worried about these tractor accidents and why the company doesn’t do anything about it. He shook his head and reached for a cigarette himself. Lighting it with a heavy silver table lighter on the coffee table, he drew heavily before finishing his answer. I just don’t know what to do, he said.

Don’t worry, dear, she came to sit beside him on the couch, you’ll think of something. Just do what you think is right. She smiled at him.

England always felt better when Mary reassured him and then blessed him with her loving smile. Of course, he knew that she knew that it worked and that’s why she did it. And it worked that time as it always did.

You’re right as usual. He put an arm around her shoulders and pulled her to him. I’ll talk to Ellington tomorrow.

It was three days later before England could get a meeting with his supervisor, Dick Ellington, head of Research & Development at Cherokee.

We need to do two things, Dick, said England. He sat across from Ellington in Ellington’s private office in the Research & Development section of Cherokee Tractor & Implement Company’s main plant in St. Louis. "We need to properly warn the operator, I mean really warn him, and we need to protect him."

And just how do you propose to protect the farmer?

A rollbar and a seat belt is a start. Reinforced covered cabs would be even better.

Whoa, Bob! We can’t rebuild the whole tractor!

Dick, you and I know that agricultural engineers have known about this problem for years. Some guys at the University of California at Davis developed something to protect the operator seven or eight years ago. It’s not that hard.

The other companies don't do it, the customers don't want to pay for it, so I doubt Cherokee will buy it, said Ellington. Look, Bob, we make a good piece of equipment. These accidents, and that’s what they are, are from operator error, not the equipment.

But the farmers don't really realize the danger, England had protested.

Well, if you insist, let's do it right. You put your concerns and your recommendations in a report to me and I'll run it through channels.

So after that meeting, England started work on a report to his superiors about the very problem that had killed or severely injured a lot of people including the elder Mr. Owens just last Tuesday and would hurt and kill many more in the future, if something more weren't done about it.

The Owens news item had disturbed England. He read it again. He knew that every day thousands of tractor users were flirting with the danger of injury from the hazard he was working on, but to read about one as he was preparing the report that might effect some changes made him feel guilty for not having pressed harder and earlier for action.

Over a period of weeks, England spent many whole days writing and rewriting his report. He confirmed the authorities for his arguments and footnotes. After explaining the problem, how and why the rollover occurred, and that the operator really didn't comprehend what could happen or how fast, he stressed two main corrective measures. The first was a warning. The second was a design change to provide operator protection.

The warning, England wrote, must be sufficient to inform the operator of the real hazard that exists. It is not enough to warn or caution against certain uses. The operator must be informed that in certain situations the tractor may flip over and crush him to death. He must then be told what those situations are and how to avoid them.

Because the operator may not be the owner, warnings limited to the owner's manual are inadequate. Adequate warnings must also be placed on the tractor itself.

For the protection of the operator, England proposed a type of rollbar like those used in racing cars, which used together with an airplane type seat belt, would prevent the tractor body from crushing the tractor against the ground. He knew agricultural engineers involved in the industry who were testing similar devices. The ASAE, the American Society of Agricultural Engineers of which he was a member, was even considering the development of standards for operator protection systems.

Finally England wrote, Correction of this design, warning, and instruction for future Cherokee tractors is not enough. Through mailings and some type of advertising, the present owners of these tractors must be made to realize the danger and be given the opportunity for installation of the protective devices on their equipment.

England closed the report with his signature line, title and department, and typed in the required distribution. In this case, the report simply went to Ellington with the usual copies for Research & Development's communication file and the Cherokee General Communications file. He put the original and each copy of the five-page report in its own large manila envelope. They were labeled for appropriate delivery and filing. Roger Winthrop, a young engineer in England's section proofread the report and delivered the envelopes to the designated company internal mail boxes. Ellington had been pessimistic, but certainly, with the gravity of the problem, something would be done. If not he, thought England, who could do something about the problem? No, he thought, he would have to be the one to try, although it might take a long time, perhaps too long.

Nothing happened. Finally, after several more weeks, England talked Dick Ellington's secretary and the receptionist of the Research & Development Department into giving him an appointment with Ellington.

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Up on Lake Superior's South Shore, fourteen year old Jake Kingsley helped his grandfather ready the old wooden sloop for winter storage in Hanson's boatyard on Raspberry Bay in Bay Harbor, Wisconsin.

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England sat on a couch in the reception area of Cherokee’s Research & Development Section, waiting. The time was nearly 11:00 o’clock. His appointment had been scheduled for 10:30. He ground out his cigarette in the ashtray on the coffee table in front of him. At the reception desk, Mavis, the receptionist and Dick Ellington’s personal secretary, glanced at him, then at the clock on the wall. Behind her, Ellington’s office door remained closed.

I’m sure he’ll be ready for you any minute now, Bob, she said.

Just then, the intercom on her desk phone began to buzz, a harsh, irritating sound that bothered England’s already frayed nerves.

Mavis touched a button which stopped the buzzing. She held the receiver to her ear. Yes, Mr. Ellington? Yes, he’s here, now. I’ll show him in.

Mavis stood and motioned toward the closed door. Mr. Ellington will see you now. She opened the door for England and remained there as he entered Ellington’s office. He sensed more than saw the door being closed behind him.

Come in, Bob. Ellington did not stand, but remained seated at his desk. England could see his report on the desk.

Sit down, Bob.

England sat in one of the two captain’s chairs facing the desk. He waited for Ellington to start the discussion. But, Ellington said nothing. He simply looked at England, then down at the various papers on his desk, including England’s report, and then back at England expectantly.

Finally, England broke the silence. You’ve read my report? he asked.

Ellington picked up the document, holding it in his left hand. With his right, he took a still smoldering cigarette from the ashtray, put it to his lips and drew heavily. He blew a stream of thick, gray smoke across the desk at England.

I have, he said. Well written, he added. Well written, indeed.

England relaxed a little. He had not known what to expect from Dick Ellington. His first discussion with Ellington led him to anticipate resistance. He believed Ellington to be a company man, but Hell, I am too, he thought. He also knew Ellington to be a decent engineer and had always thought him to be a good choice to head up the Research & Development Section. If he could get Ellington on his side, he believed he could get Cherokee and ultimately the industry to take action to correct the tractor rollover problems, produce safe tractors and save many lives.

Yes, it’s well written, said Ellington, again.

Something about his tone bothered England. It’s as though he is about to say more and doesn’t, he thought.

How do you think the Company will like it? he asked.

Well, that’s just it, Bob. You and I know the Company won’t like it at all.

England was getting what he perceived to be mixed messages from Ellington. Was he on England’s side or not? Would Ellington back him on his report? If he would, there was a chance for success with Cherokee and the industry would follow, England was sure.

England tried another approach. If you and I call a meeting, if Research & Development is behind my report, I’m sure we can convince the Company to act. It’s very important.

Bob . . . Bob, Ellington’s tone and expression like that of an adult talking to a child, your report certainly purports to be good safety engineering, but good safety engineering is simply not always good business.

Ellington pulled a cigarette from a red and white package, lit it with a lighter from his desk and held the pack out to England, his eyebrows raised. England shook his head, but pulled out his own cigarettes and nervously lit one. He did not like the direction this discussion was starting to take.

Ellington continued. We manufacture and sell agricultural equipment for profit, Bob. Cherokee Tractor & Implement Company is not the babysitter of the American farmer. What you are proposing would cost money . . . a lot of money.

I know, but . . .

Bob, all that means less profit. Any suggestions which would inevitably reduce Cherokee’s profit or ability to compete in tractor sales would not look good to management or reflect favorably on the section responsible.

I was hoping to have your support instead of just sending the report through channels as you suggested, before. England nervously fingered the copy of the report he had brought with him.

No.

Well, persisted England, what will you say when you are asked about the report?

I won’t be.

What?

I won’t be asked about your report because I’m not going to send it through channels or anywhere else.

But . . .

Look, Bob, I understand where you’re coming from, but this could be professional suicide for both of us. The Company is going to fight requirements for rollbars. They’re going to fight any requirements of retrofitting previously manufactured tractors.

But . . .

No ‘Buts’, Bob. I’ve made my decision. This report will not be supported by me or my section. Not Research & Development. And what’s more, I will not submit your report to upper management.

But, Dick, you said . . .

No, Bob, and that’s final! This discussion is over. He stood as a signal to England to leave. He punched a button on his telephone and Mavis appeared at the door almost instantly.

England rose from his chair, gathered up his papers and left.

Dick Ellington lit another cigarette and blew smoke into the air of his office which was already blue with tobacco smoke. He liked Bob England and thought him to be a good engineer and a good company man. In this instance, however, Bob was wrong. Good safety engineering was not always good business. Cherokee Tractor & Implement Company made and sold agricultural equipment for profit. It was not the babysitter of the American farmer. England's proposals would cost money. The cost would make Cherokee's tractors less competitive in the market.

All that would mean less profit, Ellington thought and crushed out his cigarette. Any suggestion inevitably reducing Cherokee's bottom line would not look good to management or reflect favorably on the department responsible.

Not my section, Ellington muttered aloud. Not Research & Development …and not on my watch!"

He slipped the report and the manila envelope into his wastebasket.

When England got home that evening, Mary was waiting to hear what happened. He told her.

Bob, you knew this might happen, said Mary, resting an arm on his shoulder.

England sat on the couch in the living room of his home. He was still upset by that morning’s meeting with Ellington. Before you went there, when you were writing your report, you were afraid of this.

But I thought Dick might change, that he might support me. At least, I hoped he would.

Mary lit a cigarette and blew a cloud of smoke in the air. Dick Ellington is a company man all the way, she said. Not that you aren’t too, but your being for the company is out of loyalty. Dick’s is out of self-preservation. Sometimes he can be an asshole.

Mary!

Well, you know what I mean. She grinned and even blushed a little at her use of language she ordinarily didn’t use and of which she didn’t approve.

I know, said England, but that knowledge doesn’t help much.

"So what are you going to do, Don Quixote? The windmill is still there. Are you giving up or are you still tilting at it?"

I’ve been thinking about nothing else since this morning. Ellington’s decision changes nothing. The rollover problem is still very real. Farmers are still getting killed or severely injured and disabled. Unless something is done, that will continue.

And that’s not good, agreed Mary.

It’s not acceptable. England rose from the couch and walked to the fireplace. Leaning against the oak mantel, gesturing with his hands like he was making a speech, which he was, he continued.

It is not acceptable to me because it is simply bad engineering. I am an agricultural engineer. The design of agricultural equipment is my business. It is my profession. Safety design is an important part of that business. The tractors being manufactured today are not safe. They tip over backwards. . . .

Mary England sat on the couch listening attentively. She provided a good audience, thought England as he continued his oration in the safety of their living room.

That they tip over backwards under certain loads has been known for many years. The industry has known this for just as many years. The companies choose to ignore this simple established fact. Because of it, the farmers need rollover protection and they need better instructions and warnings.

Very good! Mary was applauding. So what will we do, sir?

England stood by the fireplace, feeling the adrenaline as a result of his speech making. He knew what had to be done, but he was somewhat reluctant to voice it, even here in the sanctity of his own living room with only his wife present. But finally he spoke.

’We’ is right, Mary. If I do what needs to be done, it might affect you, too, especially if it affects my job.

And what, me darlin,' she said in her best Irish brogue imitation, would that be? Mary was being funny because she thought the situation called for it and needed it. She was probably right, he thought. In any event he was grateful to her for it because he found his strength and resolve returning. He had begun to give up after the meeting with Ellington.

I’ll have to go over Ellington’s head.

What and not follow channels?

That’s right. I’ll bring my message directly to the head of the company, Henry Lawton. But I have to wait for the right time. If I did it now, I'm sure I'd lose my job. Things are happening in the industry. Maybe it will be next year, maybe the next, but some day the time will be right.."

Mary came to his side, then put her arms around him. Go get ‘em, Bob. I love you. You know, you’re pretty neat when you’re mad.

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Up in the woods north of the unincorporated village of Cornucopia, Wisconsin on Lake Superior, Jake Kingsley carried his Winchester 30-30 carbine in the crook of his arm as he followed the tracks of what he hoped was a pretty big White-tail buck. Last night's snowfall had carpeted the area in white. The snow stopped in the late morning. This buck had gone through after the snow. His grandfather Reynolds was up ahead on a stand. Jake hoped to see the buck or drive it to his grandfather.

It was the opening Saturday of Wisconsin gun deer season. Jake's fifteenth birthday was Monday and Thanksgiving on Thursday. A eight or ten-point buck, or any deer at all, would be a nice birthday present and Venison for dinner back at the cottage in Bay Harbor would be great.

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For Robert England, the opportunity for action was very slow in coming. He had expected some reaction to his report, but nothing happened. He told himself again that his time would come eventually. In the meantime as a member of ASAE, the American Society of Agricultural Engineers, he worked on a committee concerned with tractor rollover accidents and helped develop standards for operator protection systems. He didn't make a lot of noise at work about his actions for fear of how they would be received by the company. He determined to wait and watch what happened across the industry and in congress and the state legislatures. There was no point in doing something if it would never get past Cherokee management and ruin his chances of being effective if and when the right time came.

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In the summer of 1966, up on Lake Superior, an old wooden sloop beat into a fresh breeze along the southwest shore of Oak Island. Jake Kingsley pulled the jib sheet to trim, watching the telltales of yellow yarn his grandfather had tied on the forestay to gauge the trim of the foresail. He adjusted the line until both pieces of yarn were trailing back horizontally on either side of the sail which meant the sail was properly trimmed for maximum driving power. The sloop heeled over a little, but the lower rail was well clear of the water. The sloop was old, but it was a stiff boat with hard chines that kept it more upright than many of the newer sailing boats.

Jake cleated the jib sheet. He turned and settled into his seat in the cockpit, studying his grandfather’s face as he steered the boat. The old man’s face looked like worn leather from so many hours on the water and in the sun. His eyes were clear and bright. As blue as the sky above or the cold, clear waters of Lake Superior, his eyes had the look of one who was seeing beyond what ordinary men see. It was like he was looking beyond the world to what its meaning was. Jake loved this old man, Jake Reynolds, after whom he had been named. It was Grampa Jake who had taught him to sail.

Jake’s grandfather sat with the tiller in his right hand looking out beyond the bow of the sloop, studying the shoreline of Oak Island ahead and looking beyond to Raspberry Island and across to the mainland of the Bayfield Peninsula.

I love it here, said Jake, sharing with his grandfather the view of the green wooded islands, blue water and cobalt cloudless sky. I wish I could stay forever.

Yes, Jake, it is a paradise, that’s for sure. But you can’t just stay here . . . forever."

Why not, Grampa? You’re here all the time.

Sure, Jake, but I’m retired.

I know that, but I mean there are lots of people who live here and they’re not all retired. I could work here. Like I worked for Hanson’s boatyard this summer.

Jake, he said, how old are you now?

Sixteen. Jake glanced at the jib. The yellow yarn on the other side of the sail was blowing straight up. He reached for the jib sheet to uncleat it and ease the sheet to trim the sail.

Never mind, Jake. I’ll steer to trim. The old man moved the tiller, bringing the boat to windward until the yarn leveled out to the horizontal again.

So you’ll be a senior and graduate next spring, right?

Right.

What have you thought about a career?

I told you. I want to live here. So I guess I have to find a career that I can do here.

Like what?

I thought about being a Department of Natural Resources Officer or a Park Ranger and work here in the Apostle Islands National Lakeshore.

Well, the old man thought a moment gazing ahead past Jake, past the bow and probably past everything a normal person would see, thought Jake, I’m not sure about the DNR, but the National Park Service people get moved around a lot, I think. You might want to be here, but you might end up at Yellowstone, or Gettysburg, or even Lincoln’s birthplace.

Oh.

Yeah, said the old man.

Well, I could work in the gas station or at Hanson’s in Raspberry Bay.

Why do I think your mother and father would not be satisfied with that?

He had to bring them into it. But he was right, thought Jake. Mom and Dad wanted him to go to college for sure.

So, Grampa, what do I do if I want to be here all the time, like you?

I’m afraid you can’t, Jake. We all have to spend our time as adults working to make a living. Your time for retirement will come. But, I strongly advise you not to rush it. Pick a career that you can believe in, one that gives you satisfaction at doing it right and accomplishing something. It’s kind of like maintaining this old boat. You work on it to keep it up and it rewards you with the joy and satisfaction of sailing like this on a day like this.

Jake stared across the channel to the mainland. They were approaching Raspberry Bay, where the town of Bay