Cathey v. De Weese

• Decision Date: 12 March 1956
• Docket Number: No. 45055,No. 2,45055,2
• Citation: 289 S.W.2d 51
• Parties: Leon CATHEY, by Nellie D. Brown, his Guardian, Appellant, v. Walter DE WEESE and Nelson Tripp, Respondents
• Court: Missouri Supreme Court

Page 51

289 S.W.2d 51

Leon CATHEY, by Nellie D. Brown, his Guardian, Appellant, v. Walter DE WEESE and Nelson Tripp, Respondents.

No. 45055.

Supreme Court of Missouri, Division No. 2.

March 12, 1956.

Rehearing Denied April 9, 1956.

C. B. Burns, Brookfield, R. B. Taylor, Chillicothe, C. B. Burns, Jr., Brookfield, for appellant.

Harry L. Porter, Marceline, Don Chapman, Chillicothe, for respondents.

BARRETT, Commissioner.

In this action against his employers for damages for the loss of his left leg while operating a hay baler, a jury returned a verdict of $15,000 in favor of Leon Cathey, a farm hand then seventeen years and five months old. But the trial court sustained the defendants' motion for judgment notwithstanding the verdict and Leon, by his grandmother as guardian, prosecutes this appeal from the final judgment in favor of the defendants. Thus the question upon the entire transcript is whether, viewing the evidence favorably to Leon, reasonable minds could differ in the drawing of inferences as to the defendants' negligence or as to Leon's contributory negligence and whether he assumed the risk of injury. Wilson v. White, Mo.App., 272 S.W.2d 1, 7; Crandall v. McGilvray, Mo., 270 S.W.2d 793, 798. In so viewing the evidence favorably to Leon it must be borne in mind that the trial court in ruling upon the motion was not at liberty to draw inferences of fact favorably to the defendants 'to countervail either presumptions of law of inferences of fact in favor of the plaintiff.' Evans v. General Explosives Co., 293 Mo. 364, 375, 239 S.W. 487, 491.

The background of this litigation is that Mr. DeWeese and his son-in-law, Nelson Tripp, were engaged in the business of farming about 1,200 acres of land in Linn and Chariton counties on the crop-share basis, and in crop season employed two or three farm hands. The latter part of March 1952 they employed Leon, at a wage of thirty dollars a week plus room and board, to do general farm work. He had worked on farms intermittently since he was thirteen and in 1952 quit school after finishing the ninth grade and started to work for the defendants, apparently on a rather permanent basis. Before he started operating the hay baler he had done some 'plowing, disking or spreading fertilizer, any number of things that go along with general farm work.' He had driven trucks and operated tractors but he had not previously operated a 'power take-off' tractordrawn hay baler. The baler upon which he was injured was a 'power take-off' tractordrawn Allis Chalmers roll type baler about one year old. Photographs and descriptions of similar type machines involving somewhat comparable mishaps and injuries to adult employees will be found in Allis Chalmers Mfg. Co. v. Wichman, 8 Cir., 220 F.2d 426 and Yaun v. Allis-Chalmers Mfg. Co., 253 Wis. 558, 34 N.W.2d 853.

At the start of the haying season, about the first of June and three weeks prior to his injury, the son-in law, Tripp, undertook to instruct Leon how to operate the baler, 'he stayed with me for a while to show me the best he could how to operate it.' The extent of Tripp's knowledge and expertness does not appear but the instruction consisted in Tripp's making 'three of four rounds around the field,' Leon riding the tractor with him and observing. Then Tripp rode for three or four rounds with Leon operating the tractor and baler. In giving specific instructions Tripp said, 'Well, on learning to operate it he said the best way to learn the same way he did would be to operate it and if something happened look around for what was wrong and try to fix it if you could and if it was something you couldn't fix, why, to get hold of him.' As to whether there were any further specific instructions Leon said, 'Well, I don't remember whether he ever named any specific thing or not, parts of the baler, but he told me how if it got balled up, hay got balled up to reverse the machine, run it back out, or it got to sticking in it, something like that, and, of course, he showed me how to string the string and how to put the ball of twine in, tie it on properly so it wouldn't catch or something like that.' Tripp, in describing Leon's learning how to operate the baler, said, 'Yes, I explained it to him. Well, in fact, he rode around with me and I explained as we wnet along. I drove slow the first round or two and I explained the operation, what happened, how to stop it. After we made a couple of rounds or so like that he took it and drove it and he drove slow and I rode with him and he seemed to understand, to catch on pretty quick how it worked.' Thus Leon had his first instruction and learned to operate the 'power take-off' hay baler.

For the greater part of the next three weeks, but not continuously, Leon operated the hay baler unassisted. He encountered, however, numerous vexing difficulties. He said, 'Well, sir, I was off and on it all the time, biggest part of the time for various things, like the string breaking, and, oh, not tieing the bale or sticking, just kicking the hay out without tieing it or folding it into the bale.' But, whatever the difficulty, 'I would fix it if I could if nothing too big,' and if he couldn't fix it himself he waited until Mr. Tripp got there. Beneath the tie arm there was a flat metal strip which operated as a stop for the forward movement of the arm. The stop broke or failed to function and Mr. Tripp made a new stop from a flat piece of iron and repaired the functioning of the tie arm but that was not the cause of Leon's injuries and, according to the defendants, there was no mechanical defect in the baler. Mr. DeWeese, in describing the difficulties encountered in operating the baler, said that it had given no trouble 'so far as workmanship. There is always things you encounter with this type baler that can cause some trouble which doesn't necessarily mean that there is anything mechanically wrong. A windrow scattered or one too closely raked together, for some reason or other your string fails to catch in the bale, won't properly function. There is a lot of things can happen that will seem you are having a good deal of trouble on certain days, yet, mechanically there is nothing wrong with the baler particularly.' Tripp said, 'It was in good condition. I run it that morning over in there and I was having I expect about the same trouble he was. The hay was thin in places, thick in others, damp, rolled up there, be heavy on one side and you get a one sided bale but big. Well, that would cause you a little trouble, wouldn't be enough hay there to catch your string and wind blowing. Just mostly hay conditions was about all the trouble.'

On the morning of June twenty-fifth Leon said that he started in the field just across the road from the house 'and the hay rather soggy and wet, weedy and I was off of the baler more than on, stopped about all the time, and I told Mr. DeWeese and he told me, I believe it was after dinner, I went over in the other field but he said to take it in the other field (because the hay was lighter) and to get along as best I could because he wanted to get that done.' But over in this field 'it kept up various things it had been doing in the other field, and, of course, I got along the best I could and then kept repairing small things that would happen and then (about three o'clock in the afternoon) the tie arm, that's the name I gave it, I don't know what the real name is, came down and it was supposed to kick out the bale whenever it come down, cut the string and kick the bale out but something must have happened because it came down and I put the string in all right but still wouldn't go back up, the arm wouldn't.' In this condition the tie arm would not operate and, since there was a full bale of hay in the machine, the canvas elevator ceased to function but the rollers continued to operate. Leon left the 'power take-off' in gear, went around to the side of the machine and pushed on the tie arm with his hands, 'thought maybe it was just temporarily froze there and that didn't do much good.' That morning, another employee working in the same field but some distance away, said that on one occasion he saw Leon and 'As he stopped the tractor he took off his cap and slapped it against his leg and jumped off and as he went around the baler he kicked it, he was in a bad mood.') But, being unable to loosen the tie arm with his hands, he climbed up on the machine and stood upon the platform at the top and 'tried to disengage it with my foot and that was when my foot (the left foot) slipped off the arm and was caught in the roller.' Of course, the force of the rollers pulled his leg into the machine above the knee, necessitating the amputation of his leg at mid-thigh.

There is no dispute between the parties as to the general rules applicable to minors and their employers. The cases have been carefully collected and the general rules set forth in Wilson v. White, Mo.App., 272 S.W.2d 1 and the annotations in 107 A.L.R. 4 and 174 A.L.R. 1080. It is not necessary to again collect the cases and restate the general rules, it is sufficient to note that the cases are in irreconcilable conflict. For example, in 1913 the court en banc, in Jackson v. Butler, 249 Mo. 342, 155 S.W. 1071, held that an employer's negligence in furnishing a reasonably safe place to work when stacked, leaning lockers fell and injured a boy seventeen to eighteen years old and whether the plaintiff was to be judged as a boy 'or as a man full-grown' and therefore guilty of contributory negligence were all questions for the jury's determination. One year later, without change in personnel and with the same judge writing both opinions, the court en banc, in Boesel v. Wells Fargo & Co., 260 Mo. 463, 169 S.W. 110, declared as a matter of law that a girl, aged fourteen years eight and one half months was guilty of contributory negligence in operating her employer's elevator from a sitting position with one leg hanging...