Blackmore v. Auer
| Decision Date | 10 December 1960 |
| Docket Number | No. 41970,41970 |
| Citation | 357 P.2d 765,187 Kan. 434 |
| Parties | Cora BLACKMORE, Administratrix of the Estate of John B. Blackmore, Deceased, Appellant, v. Victor AUER and Letha Auer, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a negligence action for personal injuries suffered by a farm laborer in the course of his employment, by falling from a hay rack when his hay hook came out of a bale into which it had been hooked, the trial court sustained a demurrer to the plaintiff's evidence, and on appeal it is held the trial court did not err in holding (a) the evidence was insufficient to go to the jury on the question of the defendants' negligence; (b) the plaintiff was free from contributory negligence; and (c) the plaintiff assumed the risk of his employment.
2. Where baled hay is loaded onto a hay rack by an experienced farm hand using the same equipment which he had used many times before in the same manner in which it had previously been used, and in a field with which he was familiar, the employer is not negligent in ordering the farm hand to load the baled hay on the hay rack in one of the ordinary methods and the usual manner to which the farm hand was accustomed.
3. The vigor of the rule applied in testing the sufficiency of the evidence on demurrer yields to the impact of admissions made by a party in his testimony while a witness in the case, and such admissions are binding and conclusive upon him if uncontradicted or unexplained, whether such admissions are elicited on direct examination or on cross-examination of the party.
4. Assumption of risk, in the law of master and servant, is a phrase commonly used to describe a term or condition in the contract of employment, either express or implied from the circumstances of the employment, by which the employee or servant, knowing the dangers of injury to which he will be exposed, agrees to assume all responsibility for resulting injury, while he is engaged in the service for which he is hired.
5. The assumption of the usual risks of an employment by a servant is not ordinarily a jury question. It is a matter of law.
Walter J. Kennedy, El Dorado, argued the cause, and W. H. Coutts, Jr., and W. H. Coutts, III, El Dorado, were with him on the brief, for appellant.
L. J. Bond and Robert M. Bond, El Dorado, argued the cause and were on the brief, for appellees.
This is an action for personal injuries suffered by a farm laborer in the course of his employment. The action is founded upon negligence and is brought against the farm employers who interposed a demurrer to the plaintiff's evidence which the trial court sustained. Appeal has been duly perfected from this ruling.
The only question presented is whether the plaintiff's evidence was sufficient to go to a jury.
This action was instituted by John B. Blackmore, as plaintiff, against Victor Auer and Letha Auer, his wife, for injuries he sustained while loading baled hay on a flat bed wagon in a hay field. The Auers employed Mr. Blackmore on a farm operated by them in copartnership in Butler County, Kansas.
The petition alleged in substance that despite the muddy condition of the field Victor Auer ordered the plaintiff to assist in the loading of baled hay by standing on a hayrack and stacking baled hay thereon by the use of a hay hook; that the field was not completely level, but consisted of rough, uneven terrain, and the plaintiff was ordered to load the hay while the hayrack was being pulled by a tractor over said rough and uneven land; that while the loading operation was thus proceeding, the plaintiff fell from said hayrack and as a result of the fall suffered a broken neck and other injuries for which he was hospitalized. The defendants were charged with the following acts of negligence:
'(a) In ordering that said hay be loaded onto said hay rack while the hay rack and being pulled over rough and uneven terrain.
'(b) In ordering the plaintiff to stand upon said hay rack and assist in the loading of said hay while said hay rack was being pulled over rough and uneven terrain.
'(c) In driving said tractor, and thus pulling said hay rack at a speed which was not reasonable and proper under the circumstances then prevailing.'
The answer of the defendants traversed the issue of negligence and affirmatively pleaded contributory negligence on the part of the plaintiff; that the plaintiff, at the time of his injuries was 'an experienced farm laborer and that he assumed all the risks of his employment, including the type of work he was doing at the time of his alleged injuries;' and that the plaintiff's injury was the result of an unavoidable accident.
The action was tried and resulted in a hung jury. Subsequently, the plaintiff, Mr. Blackmore, died and the action was revived in the name of the administratrix of his estate, who was substituted as party plaintiff. At the second trial the transcript of the testimony of the deceased plaintiff was read as his testimony, and this is the only evidence in the record on the second trial of the case as to how the injuries were sustained by the deceased plaintiff, Mr. Blackmore.
The evidence disclosed that Mr. Blackmore spent the first twenty years of his life on his father's farm in Barber County, Kansas. The next eight years he spent farming for himself on a farm in the State of Missouri. He then spent several years in occupations other than farming. At the time of the original trial of this action in June, 1958, Mr. Blackmore had spent approximately thirteen or fourteen years working for the defendants on their farm in Butler County, Kansas, as a general farm laborer. On the date of the accident, July 3, 1957, Mr. Blackmore was sixty-seven years of age.
The small field on the defendants' farm in which the injuries were sustained consisted of approximately three or four acres and was located just east of the defendants' home. The field was surrounded on one side by a river.
In the fall of 1956 this field was plowed and nothing further was done to the soil in preparation for seeding to oats, which was done in the spring of 1957. The oats were mowed in the 'stiff dough stage' in late June of 1957. On the morning of July 3, 1957, the field was raked with a side delivery rake placing the oats in windrows so that they could be baled. Mr. Blackmore completed the job of raking at about 3:00 p. m., on that day. The oats were then baled by a son of the defendants with the assistance of Mr. Blackmore. The baling was completed at about 4:00 p. m., on the same day.
The defendants' son and Mr. Blackmore then went back to the field to load the bales, using an M-type International tractor, which is described as the large size, and attached it to a flat bed wagon which measured approximately fourteen feet long and seven feet wide. The wagon had rubber tire wheels, but it had no sides or back board. Mr. Blackmore stood on the flat bed wagon where he stacked the bales on the wagon while the defendants' son handed them up to him. The loading and stacking was done while the wagon was stopped. This procedure continued with the wagon and tractor being pulled to various places in the field and stopped close to the bales which were loaded on the wagon.
After approximately fifteen or twenty bales had been loaded onto the flat bed wagon in this manner, the defendant, Victor Auer, came to the field. He thereupon directed Mr. Blackmore to stay up on the wagon and load the bales, and he began driving the tractor. The defendants' son loaded the bales from the ground onto the wagon. By this procedure, instead of stopping when the bales were loaded, the tractor continued moving at a speed of approximately four miles per hour.
After approximately six or seven bales had been loaded onto the wagon in this manner the accident happened. The relevant testimony given by Mr. Blackmore on this point is as follows:
'Q. All right. Now, what was the condition of the ground at the time in this field? A. The ground was rough.
'Q. By 'rough' what do you mean? A. Bumpy.
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Other testimony elicited from Mr. Blackmore on cross-examination was as follows:
'Q. Now, are those bales quite thick along there as you were picking them up or pretty badly scattered? A. They were scattered.
'Q. Mr. Auer have any trouble keeping up with the tractor? A. Mr. Auer was driving the tractor.
'Q. Well, one of the Auers? The son, did he have any trouble keeping up with the tractor going four miles an hour? A. No, sir, not necessarily.
'Q. I am not asking 'necessarily' did he have any trouble keeping up? A. No.
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