Brown v. Compton & Roush, 48041

• Decision Date: 06 May 1952
• Docket Number: No. 48041,48041
• Parties: BROWN v. COMPTON & ROUSH, Inc.
• Court: Iowa Supreme Court

Page 164

53 N.W.2d 164

243 Iowa 665

BROWN v. COMPTON & ROUSH, Inc.

No. 48041.

Supreme Court of Iowa.

May 6, 1952.

John Paul Jones and William H. Fulton, of Des Moines, for appellant.

Bradshaw, Fowler, Proctor & Fairgrave, of Des Moines, for appellee.

WENNERSTRUM, Justice.

Plaintiff sought recovery of damages by reason of personal injuries received by him when he, while standing in front of his own tractor on his farm, was pushed backward by the movement of it and forced against the teeth of a nearby harrow. It is claimed that the tractor motor was started by the defendant's employee without ascertaining whether or not the tractor was in gear. The case was tried to the court, a jury having been waived. The trial court found that the defendant's employee was negligent but also found that the plaintiff was negligent in standing in front of the tractor at a time when the defendant's employee was endeavoring to start the tractor's engine. The trial court held that plaintiff was guilty of contributory negligence and denied recovery. The plaintiff has appealed.

The appellant is a farmer who resides on a farm approximately four miles west of West Des Moines. On June 27, 1950 he was unable to start his tractor and sought the services of Compton and Roush who are implement dealers in West Des Moines. Walter N. Fuller, an employee, was sent to the appellant's farm for the purpose of endeavoring to put the tractor in operating condition. He first cleaned the points on the magneto and then did work on the timer. While the employee was endeavoring to put the tractor in proper condition to start it, he was on the right side of the tractor. The appellant stood in front of the tractor watching him and was approximately two feet away. Inasmuch as the facts are of importance in our consideration of this case, we shall set out in part certain portions of appellant's testimony, as follows:

'* * * I stood right in front of the tractor watching him, maybe a couple of feet away from the tractor. * * * I did not at any time offer Mr. Fuller advice or assistance while he was working on the tractor. I noticed he was working on the timer. I do not know anything about repairing a timer myself. I never repaired one. * * * Mr. Fuller finally got through working on the timer and reached over and stepped or pushed on the starter and it started up right now. I had not been at the controls of the tractor at all. I had not been anywhere around the tractor except up at the end watching him work. When he stepped on the starter, the whole tractor started.

It was going forward. I tried to get out of the way. It was only about twenty feet from this shed. I couldn't get out of the way until it hit the shed, and then I couldn't get out of the way because there was boards there, and I couldn't get over the top of it. * * * The tractor and I finally wound up in a harrow. * * * Mr. Fuller was standing right in front of the right, rear big wheel when the tractor started in motion. He jumped up on the tractor towards the control seat. He tried to stop it. He didn't get it stopped until after I was in the harrow. * * * I was not at the controls of the tractor any time from the time I went into West Des Moines until the accident happened. I was not at any time on the control seat. * * * The tractor was in fourth gear the morning when it leaped into motion on me. * * * The only conversation I recall with Mr. Fuller as to how the accident happened, he said 'We both might have got killed.' * * * I have no way of knowing what the throttle setting was on this tractor at the time Mr. Fuller started it, only the way it went. * * *'

On cross-examination Mr. Brown further testified in part, as follows:

'* * * Q. How did you happen to know that this tractor was in fourth gear? A. I could tell by the speed.

'Q. Is that the only way you could tell? A. Well, the lever was forward.

'Q. How did you know that? A. Because I seen it.

'Q. Is forward in fourth gear? A. Yes, sir.

'Q. Now, where were you standing? A. Right in front of it.

'Q. In front of the grill? A. No, in front of the cultivator.

'Q. In front of the cultivator, on which side of the grill? * * * A. I was on the right side.

'Q. And where is this gear shift lever? * * * A. It is up there by the seat.

'Q. And what is in between the gear shift lever and where you were standing? A. Well, the cultivator was in there.

'Q. Any part of the tractor itself in there? A. Well, the back end of it was there.

'Q. Isn't it true, Mr. Brown, that in order to see this gear shift lever in fourth gear, you would have to be standing out toward the end of the cultivator bar? A. Well, I might be.

'Q. What was the answer? A. I might be, I don't know.

'Q. Then, you might have been standing out towards the end of the cultivator bar, is that correct? A. I wasn't standing out near the end of the cultivator bar.

'Q. But you did see the gear shift lever in fourth gear? A. No--well, I don't know whether it was in fourth gear, but the way it went it must have been in fourth gear.

'Q. Well, didn't you testify a minute ago that you saw it in that particular gear? A. Well, I don't know whether you can see it or not. * * *'

On redirect examination appellant further testified in part, as follows:

'* * * I did not know the tractor was in gear when Mr. Fuller was preparing to start it. I don't believe I could have seen the gear shift lever from where I was standing when he started it, and my estimate of speed on the tractor and the gear position is based solely on the speed at which it started.'

Inasmuch as there appears to be a conflict in the evidence of the appellant and the witness for the appellee, we set forth in part the testimony of Walter Fuller, the employee of the appellee who was working on the tractor at the time of the appellant's injury, as follows:

'* * * I cleaned the points in the magneto, asked Mr. Brown to put it in fourth gear for me and together we rocked the tractor backwards, raising the magneto cam to the high point on the point so I can adjust the points. We rolled it together, the back wheels. I rolled on one and he rolled on the other. I was on the right-hand side, the right rear. Mr. Brown was on the other wheel, the left one. He was helping me rock it back. I asked Mr. Brown to put the tractor in fourth gear. I would say it was in fourth gear. He put it in gear for me. After I got the points cleaned and adjusted, I put the top and the back on the magneto. Then we started the tractor. I just reached around with my left hand on the starter. I was ready to check the spark at the magneto had the tractor not started. The tractor started. * * *

'Q. Did you mention to him that you were going to start the tractor? A. I believe I did when I finished with the mag. I think I said something about, 'Well, I wonder if it will run.''

On recross-examination the employee further testified in part, as follows:

'Q. You don't mean to say you would have started it knowing it was in gear on purpose, and just depending on that switch to stop it? You wouldn't have done that, would you? A. Well, not that I would have known it.

'Q. As a matter of fact, you just forgot it had been put in gear? A. I didn't know that the man hadn't taken it out. Now I didn't pay too much attention to that.

'Q. You didn't check it at all. He hadn't been back up on the seat since he put it in gear, had he? A. Not that I recall, no.'

Inasmuch as this case was tried to the court,...