Blunk v. Allis-Chalmers Mfg. Co., ALLIS-CHALMERS

• Decision Date: 03 December 1968
• Docket Number: ALLIS-CHALMERS,No. 767A40,No. 2,767A40,2
• Citation: 143 Ind.App. 631,242 N.E.2d 122
• Parties: Keith BLUNK, Appellant, v.MANUFACTURING COMPANY, Appellee
• Court: Indiana Appellate Court

Page 122

242 N.E.2d 122

143 Ind.App. 631

Keith BLUNK, Appellant, v. ALLIS-CHALMERS MANUFACTURING COMPANY, Appellee.

No. 767A40.

Appellate Court of Indiana, Division No. 2.

Dec. 3, 1968.

Rehearing Denied Dec. 30, 1968.

Robert F. Gammon, Gammon & Gammon, Indianapolis, for appellant.

James V. Donadio, Ralph A. Cohen, Ice, Miller, Donadio & Ryan, Indianapolis, for appellee; Scifres, Hollingsworth & Martin, Lebanon, of counsel.

BIERLY, Judge.

This is an appeal from the Boone Superior Court of Boone County, Indiana. Plaintiff, Keith Blunk, brought this action against defendant, Allis-Chalmers Manufacturing Company, for personal injuries. Plaintiff was a Morgan County, Indiana, farmer who had lost a leg in an accident involving a corn-picker designed and manufactured by defendant company. An amended complaint was filed alleging therein that the accident occurred because of defendant's negligence in design of the corn-picker. Defendant-appellee, in its answer to the amended complaint, alleged that the plaintiff,

'* * * knowingly and voluntarily incurred the risk of the injuries and damages complained of by exposing himself to the hazard of coming into contact with exposed parts of the corn picker when he well knew the risk involved of thus exposing himself to such an open and obvious danger.'

Upon the issues thus joined, the cause was tried to a jury. After the plaintiff rested his case in chief, the defendant filed a motion for a directed verdict. This motion was sustained by the court, and this appeal followed.

It appears from the record that at the time of the accident appellant was a farmer in Morgan County, Indiana. It further appears that appellant had been engaged in farm work for a number of years and was familiar with the various types of equipment normal to farmers and farming; that he had seen and operated various types of corn-pickers and regarded all to be basically the same in design and operation; that he considered corn-pickers in general to be dangerous machines when in operation; that from boyhood he had known it to be a dangerous and hazardous practice for an operator to get off a tractor while the corn-picker was still under power, and this fact was common knowledge of which he was aware at the time of the accident.

Mr. Blunk, appellant, testified he had purchased the used Allis-Chalmers corn-picker about a month prior to the time of the accident; that several days prior to the date of the accident the cornpicker had clogged and jammed with cornstalks due to bad weather and the unfavorable condition of the crop.

During further testimony Mr. Blunk stated that other farmers in the area were having similar problems, and that he had a similar problem with a corn-picker he had owned previous to the Allis-Chalmers model involved in the accident.

He testified that when the picker clogged, it was necessary to dismount from the tractor to unclog it; that sometimes he left the power on during this operation, and sometimes not, but that he considered it an unsafe practice to leave the power on during this operation, but sometime he felt it necessary to leave the power on to unclog the equipment.

Appellant stated at the time of the accident causing his injury that he had left the power take-off on and the snapping rollers were revolving. After Mr. Blunk had unclogged the picking device, he chose to attempt to remount the tractor to the driver's seat from the front of the picker by placing his foot on the moist fender over the moving snapping rollers, but in so doing, his foot slipped on the wet metal and into the snapping rollers, and, as a result, appellant suffered serious injury to his foot and leg.

Appellant concedes that his method of mounting the tractor was a dangerous practice especially with the power take-off still on, the snapping rollers moving, and the metal curved snout slick from moisture, yet he contends that the design of the corn-picker made any mode of mounting dangerous. To support his complaint, Mr. Blunk alleges he was given a hard choice between dangerous alternatives and that the defendant company should have foreseen the difficulty of an operator in getting on and off the machine, and should have provided acceptable and safe means of mounting and dismounting from the picker, and of cleaning the machine when it clogged and jammed.

Appellant urges us to not only approve applicable rules governing ordinary negligence but also the rule of strict liability for negligence of the manufacture and design of a product. In support thereof, appellant cites Restatement of Law of Torts 2nd, Sec. 402A. Appellant further cites as authority for applying the rule of strict liability to such cases in Indiana, Hart v. Goodyear Tire & Rubber Company (N.D.Ind.1963) 214 F.Supp. 817, and Greeno v. Clark Equipment Co. (N.D.Ind.1965) 237 F.Supp. 427.

Illinois, in a case similar to the case at bar, in adopting the rule of strict liability, held the designer manufacturer liable in a case when the plaintiff, a farmer, was injured by the defendant's corn-picker when he caught his hand and arm in the shucking rolls because there was no guard over the rollers above which corn ears had to be manually extracted. It was held by the Illinois Court that the plaintiff had a good cause of action against the manufacturer of the machine under both theories of negligent design and strict liability in tort; Wright v. Massey Ferguson, Inc., and Massey-Harris, Inc. (1966), 68 Ill.App.2d 70, 215 N.E.2d 465.

In Wright v. Ferguson, supra, the court quoted the above Section 402A Restatement of the Law of Torts 2nd, and held:

'The plaintiff must prove that his injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer's control.'

The court further held:

'The present case involves a claimed defect in design rather than a defect in manufacture and we interpret Suvada (Suvada v. White Motor Company et al. (1965) 32 Ill.2d 612, 210 N.E.2d 182) to mean that the strict liability imposed upon a manufacturer includes injuries which arise from defects in design as well as defects in manufacture.' (Emphasis supplied).

Appellant argues that there is sufficient evidence both direct and that to be inferred, in the case at bar, which would hold the manufacturer liable on the theory of strict liability as follows:

'Appellee:

'1) Failed to provide a proper rear mount, making it difficult to use.

'2) Failed to provide an on-off device controllable from the ground.

'3) Failed to provide adjustable snapping rollers to make it easier to clear.

'4) Failed to design a corn-picker so it could be raised off the ground higher than 3 or 4 inches, making it possible to clear the corn-picker from underneath (impossible with appellant's corn-picker and unlike other pickers).

'5) Designed the machine knowing it would clog and jam without providing any adequate or reasonably safe means to clear it.'

Appellant cites L. S. Ayres & Company v. Hicks (1942), 220 Ind. 86, 40 N.E.2d 334, (petition for rehearing denied 41 N.E.2d 195, 356), as holding that the defendant was not negligent or liable for the initial injury but was held liable for the aggravation of the initial injury. Then the appellant, in the case at bar queried: 'Could the jury find defendant-appellee negligent for the plaintiff's aggravation of injury in not providing a control within reach of the plaintiff-appellant?' (Appellant's brief, p. 40). Appellant asserts that the Hicks case is applicable to the case at bar, and submits that as a further reason the court should not have directed a verdict in favor of defendant-appellee.

In answer to appellee's charge in its motion for a directed verdict that appellant assumed and incurred the risk and was contributorily negligent, appellant countered by replying that he could not assume the risk as such defense is limited to where there is a contractual relationship between the parties, and cites Stallings v. Dick (1965), Ind.App., 210 N.E.2d 82.

Appellee, in its motion for a directed verdict, states that the appellant incurred the risk or was guilty of contributory negligence, adngaveinsu npe 1omga3 p, gence, and gave in support thereof a quote from a recent decision of our court in the case of Stallings v. Dick, supra, wherein Smith, J., at page 86, speaking for our court, held the test for directing a verdict in reference to contributory negligence and incurred risk, to be:

'The prevailing Indiana rule is that contributory negligence is generally a question of fact for the jury to determine where the facts are such as to be subject to more than one reasonable inference. However, where the facts are undisputed and only a single inference can reasonably be drawn therefrom, the question of contributory negligence becomes one of law. * * *'

'The Supreme and Appellate Courts have many times recognized the test for 'negligence as a matter of law' to be that negligence which is so clear and palpable that no verdict could make it otherwise. * * *'

'In applying this test both the Supreme and Appellate Courts have adopted the rule that the voluntary conduct of one exposing himself to dangers which are so obvious, imminent and glaring that no reasonable man exercising due care for his safety would have hazarded them is negligence as a matter of law. * * *'

Further, appellant points out that the defense of contributory negligence was created by the courts and not the legislature and, hence, may be changed by the courts if found wanting. Such a change recently came about in Illinois when the Illinois Appellate Court by direction of their State Supreme Court adopted the rule of comparative negligence in the case of Maki v. Frelk (1967), 85 Ill.App.2d 439, 229 N.E.2d 284, saying (of the defense of contributory negligence),

'* * * having found the doctrine to be unsound and unjust under present conditions the courts have not...