Bengford v. Carlem Corp.

• Decision Date: 05 March 1968
• Docket Number: No. 52535,52535
• Citation: 156 N.W.2d 855
• Parties: Rodney BENGFORD, Minor, by Raymond Bengford, his Father and next friend, Appellee, v. CARLEM CORPORATION, a Corporation, and Ford Motor Company, a Corporation, Appellants.
• Court: Iowa Supreme Court

Page 855

156 N.W.2d 855

Rodney BENGFORD, Minor, by Raymond Bengford, his Father and next friend, Appellee, v. CARLEM CORPORATION, a Corporation, and Ford Motor Company, a Corporation, Appellants.

No. 52535.

Supreme Court of Iowa.

March 5, 1968.

Rehearing Denied May 7, 1968.

Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, for appellants.

Thomas L. McCullough, Sac City, and Daniel Williamson, Earley, for appellee.

MOORE, Justice.

On July 29, 1964 plaintiff, Rodney Bengford, then age 9, lost his right leg below the knee when he became entangled in the augers of a Heider Grain-O-Vator wagon being used by his father on the farm of his employer Carlem Corporation. A Ford tractor designed, manufactured and sold by Ford Motor Company, was attached to the wagon and propelled the augers.

This is an appeal from judgment on jury verdict for plaintiff's damages against the farm owner and operator, Carlem Corporation, based on alleged negligence in furnishing defective farm machinery and against Ford Motor Company. Plaintiff's action against Ford is based on negligence and also breach of implied warranty.

The relatively recent development in the law, the doctrine of strict liability, which has been adopted as against manufacturers by several other jurisdictions is not pleaded in this case and therefore is not now considered by us.

The primary contention of each defendant is the trial court erred in overruling the motions for directed verdict and judgment notwithstanding the verdict. They also contend the court erred in admitting certain evidence, overruling their objections and exceptions to instructions and sustaining plaintiff's objections to interrogatories filed by defendants prior to trial.

After being employed as a farm hand by defendant, Carlem Corporation, Raymond Bengford, his wife and five children on December 1, 1963 moved upon Carlem's 120 acre farm and began operating it together with a 160 acre tract rented by Carlem. The equipment furnished by Carlem included a Ford 6000 diesel tractor which Carlem purchased about the same time Bengford was hired. Paul Viet, one of the three Carlem stockholders, hired Bengford, bought the Ford tractor and was in general charge of Carlem's interest. He visited the farm about once a week.

Bengford used the Ford tractor for various farm jobs during the first few months of his employment but did not use it in conjunction with the Grain-O-Vator wagon until about a month before Rodney's injury. As is customary, other members of the family, including Mrs. Bengford, a daughter and Rodney, assisted with the farm work. Viet was aware of their activities.

Rodney often rode with his father on the tractor and was taught to operate it. When driving the tractor through opened gates and making other short moves of the tractor, Rodney operated it and thereby saved the time and effort of his father getting on and off. Mr. Bengford testified his son's help facilitated the work and allowed him to get more done.

During the late spring and summer of 1964 Bengford's work included feeding and caring for 8000 turkeys. They were located about 20 rods from the farm yard in an open field where there was about 12 feeders which required filling with grain. This was done by the use of the Ford tractor to which was attached the Grain-O-Vator wagon.

The Grain-O-Vator wagon, owned by Carlem, was V-bottomed with an auger at the bottom which extended the full length thereof. When in operation this auger carried the grain to a back auger which in turn carried it up and out into a chute to the feeder. The power to propel these augers came from the tractor through the power take-off shaft.

The owner's manual furnished by defendant, Ford Motor Company, which Bengford had studied, contained photographs and printed instructions explaining the various parts and controls for the operation of the tractor. It included a picture of the power take-off (P.T.O.) handle located near the steering wheel.

The manual, exhibit G, contains this: 'P.T.O. Handle. This handle is conveniently located in front of the operator as shown in Figure 5. Pull the handle out slowly to engage the P.T.O. shaft. Push the handle in to disengage the shaft.'

While operating the tractor Bengford became aware that although the P.T.O. handle was pushed in the shaft continued to turn. He called this fact to Viet's attention who told him it would probably stop after the unit was run for a short time. Viet told Bengford he owned the same model Ford tractor and it also did not completely disengage the shaft when the P.T.O. handle was pushed in.

On July 29, 1964 as was his custom Bengford together with Rodney was using the tractor and wagon to fill the 12 feeders with grain. After the last one was filled and the wagon almost empty Bengford testified he idled the motor and 'I pushed the power take-off in. When you push it in, it's supposed to shut off. I thought it had shut off. After I shut it off, I climbed down off the tractor and started closing the feeder lids.'

While so engaged Bengford heard Rodney crying for help and upon his arrival at the wagon found Rodney's right leg entangled in the augers. His foot could not be seen. It was partly in the upright auger. Bengford attempted to move the tractor and wagon to get his neighbor's help but found some power was still being transmitted to the augers. He then disconnected the tractor shaft from the wagon.

With the neighbor's help the wagon was disassembled before Rodney could be extricated and taken to a doctor. His right leg below the knee was badly mangled which necessitated amputation.

Viet shortly after the accident reassembled the unit and when he attempted to return it to the farm learned the power take-off was transmitting power and rotating the augers although the P.T.O. handle was pushed in.

Bengford testified he had told Rodney not to get into the wagon. Rodney had no recollection of this admonition. His testimony as to why he got in the wagon is inconsistent. He testified he had gotten into the wagon to stop the auger with his foot as he had done previously. He also testified he was in the wagon to push the remaining grain down to the auger.

The neighbor, Raymond Drey, who helped extricate Rodney, testified it was not unusual in the community for youngsters to ride on tractors helping their fathers and 'tractors can be absolutely dangerous if the controls on it don't work the way they are supposed to work.'

In the discovery deposition of Paul Viet, read into the record, he stated that in addition to the $370 per month paid to Bengford he was also furnished the farm home for himself and his family. He stated his Ford tractor was just like the one being used by Bengford and 'Before Rodney lost his leg, I had personal knowledge that the power take-off unit of my own tractor was continuing to revolve or have power after the switch to it was disengaged or shut off. It was real unhandy to hook it up after you disengaged the power take-off, especially when you first started the tractor. It could be hooked up that way but it was just unhandy and kind of nasty to handle. The problem was more pronounced or more of a problem when the tractor was cold. You have to get off the tractor to shut off the other switch underneath the tractor in order to hook it up to some kind of power.'

He also stated he knew the take-off shaft on the Carlem tractor continued to rotate after the shut off handle was pushed in but that he had stopped the turning by just grabbing hold of it. On cross-examination he stated: 'Before this accident happened I did not dream the tractor could generate enough power to chew the leg off like it did.'

Bob Liechty, a harvester farm equipment dealer for 30 years and an experienced Ford diesel 6000 tractor operator, on Labor Day 1965 tested the Carlem tractor, which remained unchanged at all times. He attempted to grab and hold the power take-off shaft with his hands while the power take-off handle was pushed in but was unable to do so.

The following January Liechty again examined and experimented with the Carlem tractor. While the power take-off handle was in the off position ears of corn and a filled sock were dropped into the wagon. The augers were not stopped and the corn went through and was thrown out on the ground. The sock also went through the auger system. He testified Howard Crabb, the Sac City Massey-Ferguson dealer, was present when this test was made.

Direct examination of Liechty includes:

'Q. From your experience as an implement dealer and farm work, have you known a machine to transmit power like that when the switch is supposedly in the off position? A. No, not to my knowledge.

'Q. Would you consider such a piece of equipment that worked in this way as a safe piece of machinery?

'Mr. Vizintos: Object to that as calling for an opinion and conclusion of the witness and invading the province of the jury.

'Mr. Woole: Same objection.

'The Court: Overruled the objection. This man has been in the implement business for a period of 30 years. As to the merits of his opinion, that is a question for a jury to decide, whether he knows what he is talking about. You may answer.

'A. It's my opinion that it's a real unsafe device. I'm also to the opinion that is many more safety--

'Q. Do you sell any machines that the power take-off switch doesn't work when you disengage it? A. I hope not.

'Q. Do you? A. Not to my knowledge.'

John Thompson, a farm machinery dealer for 18 years who was then handling the John Deere line but experienced in selling Ford tractors, a few days before the trial examined the Ford tractor and Heider Grain-O-Vator wagon in which plaintiff was injured. His testimony includes: 'While I was there, the Ford tractor was hooked to a Heider auger wagon, and the power take-off handle was in the off position, disengaged position. Power from the tractor to the auger continued to be transmitted at the idle speed. We threw some ears...