(dissenting).
I cannot agree with the majority opinion upholding liability of respondents herein for furnishing a tractor to plaintiff Harold Ellis without a properly-working cylinder lift. The record does not show such a lift is, or ought to be, standard equipment on a farm tractor. The record does not show that Mr. McCrary, respondents’ foreman, had the slightest knowledge that Harold Ellis was using this tractor at the time of the injury, so as to cause the front wheels to raise off the ground. Harold grew up on a farm and around tractors and had driven tractors prior to this time, and he had pulled discs with tractors prior to this occasion. Tractors, when properly used or operated, do not “rear up” and turn over. McCrary had no reason to anticipate that this tractor would “rear up” or turn over.
There is no question but that Harold knew the cylinder disc on this tractor was *795not working as early as about 10:00 a. m. on the morning he began to use the tractor} and being the day prior to his being injured. Harold did not tell either Mr. Mc-Crary, Mr. Harper, his employer, or anyone else that the tractor was "rearing up” as he operated it. This case stands in the same position as if the tractor had never been equipped with a cylinder lift.
The rule of liability of a furnisher of a chattel to another is stated in the Restatement of the Law of Torts, Vol. 2, 2d Ed., 1965, as follows:
"§ 388. Chattel Known to be Dangerous for Intended use
“One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
"(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
“(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
“(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.”
Under comment (f) to § 388, it is said that liability of a supplier of a chattel exists “if, but only if, there also exists the other conditions necessary to liability."
Under the comment to clause (b) of § 388, the Restatement says:
“One who supplies a chattel to others to use for any purpose is under a duty to exercise reasonable care to inform them of its dangerous character in so far as it is known to him, or of facts which to his knowledge make it likely to be dangerous, if, but only if, he has no reason to expect that those for whose use the chattel is supplied will discover its condition and realize the danger involved. It is not necessary for the supplier to inform those for whose use the chattel is supplied of a condition which a mere, casual looking over will disclose, unless the circumstances under which the chattel is supplied are such as to make it likely that even so casual an inspection will not be made. * * * ” (emphasis added.)
See also: Lackey v. Perry, 366 S.W.2d 91, 94-95 (Tex.Civ.App., 1963) n. w. h.; Nesmith v. Magnolia Petroleum Co., 82 S.W.2d 721 (Tex.Civ.App., 1935) n. w. h.; 131 A.L.R. 845, 853; 8 Am.Jur.2d § 154, p. 1047 ; 8 C.J.S. Bailments § 40, p. 479.
The record shows without dispute that prior to selecting this particular tractor from the Red Town machinery park, Mr. Harper — the bailee— knew that the cylinder lift would not work. Harold Ellis discovered this fact prior to 10:00 o’clock on the morning of June 19, 1962 — the day the tractor was borrowed. On June 19th and prior to the occasion when Harold was injured about 11:30 a. m. on June 20, 1962, the disc plow on nine or ten occasions had “balled up” or pushed up huge quantities of soil immediately in front of the disc so that the plow no longer was functioning and would not cut into the ground. Harold Ellis testified that on such occasions he would use the drawbar lift — the only lift that was working — and raise the tractor drawbar and keep driving until the disc had passed over the pile of soil in front of the disc. Then he would release the drawbar lift and the plow would again take the soil and start cutting as it was supposed to do. He further testified that on three of these occasions and prior to the time of his injury, when he applied the drawbar lift and was driving over the pile of soil, the front wheels of the tractor just seemed to float off the ground about a foot or a foot and a half in the air until the disc had passed *796over the pile of dirt and then the wheels would settle down. He testified that he would drive five, six or seven yards with the front wheels in the air. As far as this record shows, these facts were not known to Mr. McCrary and Harold did not tell him about the front wheels leaving the ground when he drove the tractor over the piles of dirt.
The record also shows without dispute that at the time the tractor was taken by Mr. Harper, Mr. McCrary was not present and so could not have given instructions as to its use to anyone — including Harold Ellis. Mr. McCrary testified that on the morning of June 19th he did not give instructions to Harold about the fact that the cylinder lift was not operating in that the lever to the cylinder lift was broken. Harold knew this fact and therefore, under clause (b) of § 388 of the Restatement, Mr. McCrary was under no duty to tell Harold of the existence of a defect which Harold already knew to exist. Furthermore, under the comment to clause (b) quoted above, Mr. McCrary was only under a duty to inform Harold of a dangerous character of the tractor “in so far as it is known to him.” There is nothing in the record which establishes that McCrary was aware of the fact that Harold was operating the tractor in such a manner that the front wheels of the tractor would raise off of the ground.
Under the rule of law quoted from § 388 of the Restatement of Torts, and the other authorities cited, I would hold that there was no liability attached to either Mr. Mc-Crary or to Red Town as the bailor of this tractor. Mr. McCrary breached no duty owing to Harold by his failure to warn him of the existence of a condition known to Harold. Neither is there any evidence in this record to support a finding that it could reasonably have been foreseen that the use of a tractor without a cylinder lift would cause injury to one operating such a tractor. The majority opinon herein will require all farm tractors used hereafter to be equipped with properly working cylinder lift, lest the tractor overturn as the result of its improper use and operation by a farm hand.
I would affirm the judgment of the Court of Civil Appeals.
HAMILTON and POPE, JJ., join in this dissent.