Calkins v. Sandven, 51116
| Citation | 129 N.W.2d 1,256 Iowa 682 |
| Decision Date | 09 June 1964 |
| Docket Number | No. 51116,51116 |
| Parties | Wayne CALKINS, Appellee, v. Marvin SANDVEN and North American Manufacturing Co., Appellants. |
| Court | United States State Supreme Court of Iowa |
John H. Mitchell, Fort Dodge, for appellant-cross-appellee Marvin sandven.
Gleysteen, Nelson, Harper, Kunze & Eidsmoe, Sioux City, for appellant-cross-appellee North American Manufacturing Co.
Guthrie & Blackburn, Webster City, for appellee-cross-appellant Wayne Calkins.
These are appeals granted by us under rule 332, Rules of Civil Procedure, 58 I.C.A., from orders overruling defendants' motions for directed verdict and for judgment notwithstanding the jury's failure to return a verdict in a law action to recover, from the manufacturer and the owner of a self-unloading farm wagon, for personal injury sustained by an employee of the owner. The manufacturer is North American Manufacturing Co., herein called North American, and the owner-employer is Marvin Sandven. Plaintiff-employee is Wayne Calkins. He was severely injured when his right arm was caught in moving parts at the rear end of the wagon.
Upon the trial each defendant moved for directed verdict at the close of the evidence, mainly on the ground there was insufficient evidence of defendants' negligence which caused the injury. The jury was unable to reach a verdict. Each defendant then moved for judgment notwithstanding such failure on the ground a verdict should have been directed in accordance with the motions therefor. (See R.C.P. 243.) We granted defendants permission to appeal from these adverse rulings and granted plaintiff permission to cross-appeal from an adverse ruling on his objections to an instruction to the jury.
Principal question presented is the sufficiency of the evidence of negligence of each defendant, in the respects alleged by plaintiff, which could be found to have caused the injury. Of course in considering this question we view the evidence in the light most favorable to plaintiff. We must keep in mind, too, that generally questions of negligence, contributory negligence and proximate cause are for the jury; it is only in exceptional cases they may be decided as matters of law. (Citations unnecessary; see rule 344(f) 2 and 10, R.C.P.)
I. Defendant Sandven is a farmer. Plaintiff Calkins, then 36, started to work for him in February, 1961. He was injured June 12, 1961. Plaintiff had previously farmed about six years. Plaintiff lived about one and one-half miles from Sandven's place while he worked there. Trade name of the wagon in question is Grain-ovator 40. On June 12 Sandven told plaintiff to take the wagon to a hog lot, get the corn out of it for the hogs to eat and check it thoroughly to make sure it was in running order for use the next day. Plaintiff moved the wagon to the hog lot with a tractor, got in the box and shoveled out the corn. He then oiled the inside of 'the flights' in the bottom of the wagon box and alighted from it. Plaintiff then, for the first time since he worked for Sandven, started the flights or crossbars moving by starting the power take-off on the tractor attached to the wagon.
After plaintiff got down from the tractor he walked around the wagon to 'check everything.' As he got to the rear of the wagon he tripped and fell, his right arm caught in the opening at the rear and was injured by the moving flights or bars normally used to move the contents of the wagon from rear to front toward the unloading chute at the side of the front end. Just what plaintiff tripped over does not appear. Sandven had been feeding at lot of cattle and hogs around the lot, the ground was rough and cobs and some branches were lying there. Plaintiff testifies he was being careful.
At each of the four corners at the bottom of the wagon box was a sprocket or cogwheel. Around the bottom at each of the two sides was an endless chain which fit over the two wheels on that side. Attached to the two chains were crossbars or flights, 17 inches apart, which moved forward along the bottom of the wagon and then to the rear underneath the bottom. When the bars got to the rear they were moved upward by the chains and two rear sprocket wheels from underneath to the top of the bottom, in position to move forward again. As we have indicated, the power to move the chains and crossbars was supplied from the tractor by the power take-off.
The accompanying photo, reduced in size from an exhibit, may help visualize the rear of the wagon. There is an opening 5 7/8 inches wide at the top of the end piece of the wagon. Plaintiff's arm was caught in this opening, at about the point of the arrow, so he could not extricate it.
Plaintiff had no self-unloading wagon when he himself farmed and never saw a Grain-o-vator before he worked for Sandven. The wagon in which his arm was caught usually sat in Sandven's farmyard. Plaintiff saw it there but paid no attention to what was in the rear. He says, On cross-examination plaintiff admits he knew the chains went out beyond the end of the wagon box but he does not testify he knew the moving parts were not covered.
The evidence is in some conflict as to how close to the rear of the wagon a person must be to see the moving parts above the end piece or rear panel. Plaintiff's son, who worked with him the day of the injury, testifies one would have to be within two feet to see the moving parts at the rear end. Plaintiff says anyone standing where the photographer stood to take the photo reproduced above would not see the chain or flights. Defendant Sandven and North American's president-general manager testify the moving parts can be observed from a distance of about five feet. To this the latter witness adds, 'but not completely.'
A safety agricultural engineer from Iowa State University says that in guarding against major farm hazards if the objective of a machine can be obtained by completely covering the moving part, the experienced engineer tries to do so. 'The principle is to guard these as effectively as you can and still obtain the purpose of the machine and if we can enclose it entirely we would do this or put some shield over it.' He also testifies it surely would be feasible to shield the open space of 5 7/8 inches at the top of the end panel. On cross-examination this witness says, 'If you look closely you can see these moving bars as they come up from this position and get the impression there is a protection by this inadequate shield that is there.'
A design engineer testifies it would be feasible and relatively simple to shield the open area at the rear of the wagon so you would not accidentally get into it and explains how this could be done.
North American's president-manager says the rear end piece serves three purposes: 1) it holds the sides of the box together at the rear; 2) a tightener bar; and 3) to protect the mechanisms and a man so he would not get entangled in the sprockets. He admits a shield could be placed over the open space without interfering with the machine's function but he felt it was adequately protected.
II. The single charge of negligence submitted to the jury against North American is in designing a machine containing latently dangerous conditions capable of injury to a person working about it when, in the exercise of reasonable care, it was feasible to shield said danger without materially interfering with the function of the machine.
Two charges of negligence against defendant Sandven were submitted--in failing to provide plaintiff 1) a safe place to work, and 2) a safe instrument with which to work.
Each defendant assigns three errors in the court's refusal to direct a verdict or enter judgment against plaintiff notwithstanding the jury's failure to return a verdict. In effect, each defendant relies upon three grounds of its, or his, motion to direct. The first of these is the same--that the evidence fails to show such defendant breached any duty owing plaintiff.
North American's second assignment is that the record clearly shows it designed the wagon to guard against reasonable probability of harm to users. Its third assigned error is that plaintiff's testimony shows the cause of plaintiff's injury was his tripping and falling.
III. We consider first whether North American was entitled to a directed verdict on any ground on which it relies. The question presented is whether there is substantial evidence it was negligent in the respect alleged by plaintiff and such negligence was a proximate cause of his injury.
The broad general rule as to liability of a manufacturer of a chattel is thus stated in section 395, Restatement Torts: 'A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it is manufactured and to those whom the supplier should expect to be in the vicinity of its probable use, is subject to liability for bodily harm caused to them by its lawful use in a manner and for a purpose for which it is manufactured.'
Comment c under section 395 states in part: 'The particulars in which reasonable care is usually necessary for protection of...
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