875 F.2d 1262 (7th Cir. 1989), 88-1794, Pomer v. Schoolman

Docket Nº:88-1794, 88-1872.
Citation:875 F.2d 1262
Party Name:Karl L. POMER and Claire L. Pomer, Plaintiffs-Appellants, v. Dennis SCHOOLMAN and James King, Defendants-Appellees, Counterplaintiffs-Appellants, v. DEERE & COMPANY, Defendant, Counterdefendant-Appellee.
Case Date:May 12, 1989
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1262

875 F.2d 1262 (7th Cir. 1989)

Karl L. POMER and Claire L. Pomer, Plaintiffs-Appellants,

v.

Dennis SCHOOLMAN and James King, Defendants-Appellees,

Counterplaintiffs-Appellants,

v.

DEERE & COMPANY, Defendant, Counterdefendant-Appellee.

Nos. 88-1794, 88-1872.

United States Court of Appeals, Seventh Circuit

May 12, 1989

Argued Jan. 6, 1989.

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Charles Locker, Chicago, Ill., for plaintiffs-appellants.

Richard F. Record, Jr., Craig & Craig, Mattoon, Ill., Hurshal C. Tummelson, Phebus Tummelson Bryan & Knox, Urbana, Ill., for defendants-appellees, counterplaintiffs-appellants.

Before WOOD, Jr., POSNER and MANION, Circuit Judges.

POSNER, Circuit Judge.

A gruesome accident on an Illinois farm in 1983 has produced an appeal which brings before us the fellow-servant rule--a nineteenth-century tort doctrine long ago consigned, one might have thought, to the dustbin of history. The appellants, who were the plaintiffs in the district court, are Karl Pomer and his wife (the latter claiming loss of consortium). The defendants are Dennis Schoolman, an Illinois farmer who hired Pomer to drive a truck; James King, a fellow employee of Pomer's, who drives a combine for Schoolman; and Deere & Company, the manufacturer both of the combine and of the attachment to it that injured Pomer. At the end of the liability phase of the trial, the district judge directed a verdict for Schoolman. The jury then brought in verdicts for the remaining

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defendants. The Pomers appeal on a variety of grounds. Schoolman and King have filed a conditional cross-appeal against Deere, arguing that if we send the case back for a new trial, the issue of contribution among joint tortfeasors should be submitted to the jury under a different form of verdict. However, on the view we take of the Pomers' appeal, the cross-appeal is moot.

At the time of the accident Karl Pomer was in his late thirties, an experienced truck driver with, however, little experience around farms. Schoolman had hired Pomer in September to drive a semi-trailer truck that hauls grain to Schoolman's grain elevator. The corn harvest began a month later and the accident occurred on the second day of the harvest, Pomer having been elsewhere the first day. King was harvesting the corn with a Deere combine to which a Deere corn head (i.e., corn picker) was attached. Deere's largest corn head, it has eight rows--large steel points that protrude from the front of the head. (See the photograph of the corn head, at the end of this opinion.) Beneath the rows are gathering chains. The corn head is attached to the front of the combine, and as the combine moves forward, the gathering chains pull the corn into the head, where it is shucked. An auger (a large rotating screw) at the back of the head conveys the shucked corn into the combine, where it is deposited behind the driver, who sits in a cab high up on the combine. A separate auger, in the combine itself, drives the corn up a chute in the back of the combine so that it can be loaded into a truck.

King had stopped the combine beside Pomer's parked truck to load the truck. The loading is done by the combine operator, who guides the chute in the back of the combine over the open bins of the truck. While loading the truck King was looking over his shoulder at the chute and the truck, rather than forward. The combine was stationary. (There was some evidence, but the jury was entitled to and apparently did disbelieve it, that the combine might have "crept" forward accidentally.) However, the corn head had not been turned off. This was standard operating procedure, because if a corn head is turned off before all the corn in it has been shucked, the machinery may foul. The corn head makes a great deal of noise when it is turned on, and its rows, which at the time in question were probably about six inches above the ground, are clearly visible; the ground moreover was clear, the corn having been stripped off by the corn head.

Pomer left the cab of the truck and walked around to the back to watch the corn being loaded from the combine into the truck's bins. He was standing next to the corn head with his head craned upward in an effort to see whether the bins of his truck were filling up, and the next thing he knew he was in the corn head. The only plausible explanation of what happened is that, while standing in an awkward position looking upward at the truck, Pomer took a step to the side (perhaps to regain balance), which brought his foot under the left-most row of the corn head, where he was caught by the chains underneath, jerking him into the machine. King quickly placed the auger in the corn head in reverse to save Pomer, and the corn head "spit him out," but not before it had mangled his legs. Both legs were later amputated (whether above or below the knees, the record does not reveal). Pomer was still conscious when rescuers from the volunteer fire department arrived on the scene. He told one of them not to blame Jim King; he (Pomer) had just taken one step too many, it was all his fault, and he was going to be a vegetable. He told another "it was my fault, my fault."

Illinois citizens at the time of the accident, Pomer and his wife later moved to Michigan and were therefore able to bring this suit as a diversity suit in federal court. Count I of the complaint charged Schoolman (the employer) and King (Pomer's fellow employee) with liability for negligence by King in the operation of the combine, the alleged negligence consisting primarily of King's failing to turn off the corn head before loading the corn into the truck and failing to maintain a careful lookout for Pomer. Count II asked for punitive damages against Schoolman and King. The

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grounds were that King, who was 20 years old when the accident occurred, "was possessed of an immature and reckless nanture [sic ], ill suited to the operation of such mechanical devices as a combine"; that Schoolman had failed to train King in the safe...

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