Bell v. Brown

• Decision Date: 16 December 1931
• Docket Number: No. 41004.,41004.
• Citation: 239 N.W. 785,214 Iowa 370
• Parties: BELL v. BROWN.
• Court: Iowa Supreme Court

214 Iowa 370

239 N.W. 785

BELL

v.BROWN.

No. 41004.

Supreme Court of Iowa.

Dec. 16, 1931.

Appeal from District Court, Washington County; J. G. Patterson, Judge.

Action by an employee against the defendant for damages for personal injury, alleged to have resulted by reason of negligence of defendant, as his employer, in furnishing for the use by plaintiff, as such employee, of a tractor with alleged inadequate and defective appliances for throwing it out of gear, and for failure of the defendant to throw out of gear, at the time in question, a binder which was being propelled by power from the tractor. The defendant answered by a general denial and an affirmative defense of assumption of the risk. Trial to the court and a jury. At the close of all of the evidence, the court sustained a motion for a directed verdict in favor of the defendant. From the judgment rendered, the plaintiff appeals.

Reversed.

Ralph H. Munro, of Fairfield, for appellant.

Livingston & Eicher, of Washington, Iowa, for appellee.

WAGNER, J.

The defendant is a farmer, owning and operating a farm in Washington county. Beginning about March 1, 1928, until the time of the accident hereinafter referred to, the plaintiff was employed by the defendant to render service as a farm hand. The accident occurred on July 17, 1928, while the plaintiff and the defendant were engaged in cutting oats. The binder, when in operation, was pulled by power from a tractor connected therewith. The plaintiff was operating the tractor, the defendant the binder. The tractor, as originally constructed, had the usual device for disengaging the power and throwing it into neutral. In addition thereto, a former farm hand of the defendant, in 1926, constructed out of material found on the farm what plaintiff denominates a “make shift contrivance,” and which some of the witnesses call a “hand clutch,” and which was attached to the clutch or foot pedal on the tractor, so that, by pulling backward on the top thereof, the power would be disengaged. This “hand clutch” could be operated by the man upon the binder by pulling on a rope attached thereto and leading therefrom to the seat on the binder, as readily as by a pull thereon without the aid of the rope by the operator of the tractor. The various farm hands employed by the defendant, all of whom were witnesses in the case, testified that they had used this contrivance for the purpose of disengaging the power or throwing the tractor out of gear. Neither this contrivance nor one of a similar nature was a part of the tractor as originally constructed. It consists of two pieces of iron about an inch in width and one-sixteenth of an inch in thickness. The two pieces are joined by a bolt which serves the purpose of a hinge. The lower portion thereof was attached to the clutch or foot pedal on the tractor in such a manner that a pull backward would cause the top portion to move slightly to the rear, which had the effect of throwing out the clutch and disengaging the power. It is so constructed that, when the top portion was pulled in a position more than parallel with the lower portion, the tractor was then out of gear. When pulled past this parallel position, it was in a position which the witnesses describe as “past center.” The defendant testified: “It could be pulled about half an inch past center I would judge, yes. If the vibration of the engine would move that half an inch then the spring would pull it into gear.”

The plaintiff testified: “There was nothing to hold it past center. There were no notches in the lever.” The plaintiff testified that the regular gear shift, which constituted a portion of the original construction of the tractor, was not in good working order; “when you were driving this tractor and it was in gear you couldn't throw it in and out of gear every time. There was something worn about the parts so that you couldn't throw it far enough out of gear to disengage it. Mr. Brown said that he was going to have that tractor fixed, he knew about it. We had talked about it. He said he was going to see some mechanic and see if he couldn't get those gears fixed so as to throw the gear back in neutral again.” If the power was disengaged by either of the methods hereinbefore mentioned, the tractor would remain stationary, but the motor would continue to run. While cutting oats, there were times when the sickle bar became clogged by the gathering of cornstalks thereon, which were removed by either the plaintiff or the defendant--sometimes by one and sometimes by the other. Just before the accident, the plaintiff observed that the sickle bar was clogged by a cornstalk. He testified, in substance, that, when he observed this condition, he tried to throw the tractor out of gear by the use of the regular gear shift, which would not work, and that he then pulled this “hand clutch” past center, which stopped the forward movement, and he got off the tractor, removed the cornstalk from the sickle bar, and turned around, when the tractor, having been thrown into gear by its vibrations from the running motor, moved forward, and he was caught in the foot by the sickle, which was in operation, and in this manner received a serious and permanent injury.

In his petition he alleges, in substance, that the defendant was negligent, in that he failed to furnish a reasonably safe machine and appliances thereto with which to do the work, and in that the defendant negligently failed to throw the binder out of gear at the time in question, which negligence was the proximate cause of his injury. The defendant answered by a general denial, and affirmatively pleaded assumption of the risk by the plaintiff.

[1] At the close of all of the evidence, the court sustained defendant's motion for a directed verdict in his favor. The grounds of said motion epitomized are as follows: (1) That the plaintiff was guilty of contributory negligence; (2) that plaintiff's injury was sustained outside the line of his duties; (3) that there was no negligence on the part of the defendant; (4) that the negligence, if any, on the part of the defendant was not the proximate cause of plaintiff's injury; (5) that the evidence affirmatively shows that plaintiff assumed the risk; (6) that under all of the evidence the court could not allow a verdict in plaintiff's favor to stand. The court sustained this motion generally, and therefore we must consider each one of said grounds, for, if any ground of said motion is good, then the action of the court must be affirmed, but, if all of said grounds are without merit, then the action of the trial court must be reversed.

[2] There is no merit in the first ground of the motion hereinbefore set out, to wit, contributory negligence by the plaintiff. It is well settled by this court that contributory negligence in an action brought by an employee or servant against his employer or master for damages caused by the negligence of the employer is not a complete defense, but may be pleaded by the defendant only in mitigation of damages. See section 11210, Code 1927; Potier v. Winifred Coal Company, 192 Iowa, 1280, 184 N. W. 739;Hunt v. Des Moines City Railway Company, 188 Iowa, 1068, 177 N. W. 48;Oestereich v. Leslie (Iowa) 234 N. W. 229. This question is fully discussed in the Oestereich Case, and repetition of what we there said is unnecessary.

[3][4][5] The appellee makes some contention that the injury received by plaintiff was not received in the line of his duty or within the scope of his employment. It is true that the record does not show that the defendant had by word of mouth instructed the plaintiff to remove the rubbish from the sickle bar, but he was employed as a farm hand for general purposes. At the time in question, he was operating the tractor. The rubbish gathered upon the sickle bar at various times, and sometimes was removed by the plaintiff and sometimes by the defendant. The defendant testified, in substance, that he does not remember telling that whoever saw the obstruction on the sickle bar first should get down and remove it, but that he (the plaintiff) got in there at times; “there wasn't any use of my getting off because he was there before I could get off the binder and go in there.” “At this time Daryl (plaintiff) stopped the tractor and went in there by himself. Yes, sir, he had done that before. When I was cutting he would get off and take those stalks off. * * * I didn't tell him to but he got to coming in there himself. He was working for me and I was paying him for his time and he was working under my direction.” It is elementary that, in order for a servant to be entitled to recover from his employer for injury received in a case like the one at bar, he must at the time have been engaged in the line of his duty, or, otherwise stated, within the scope of his employment, but the scope of a servant's duties is to be defined by what he was employed to perform and by what, with knowledge and approval of his master, he actually did perform, rather than by the mere verbal designation of what service he was to render. See 39 C. J. 378. It is quite apparent from the record that the court could not say, as a matter of law, that, at the time of the accident, the plaintiff was not engaged within the scope of his employment as a farm hand. Therefore there is no merit in the second ground of the aforesaid motion.

[6][7] We will consider the third and fourth grounds of the aforesaid...