Chisenall v. Thompson

• Decision Date: 13 October 1952
• Docket Number: No. 2,No. 43007,43007,2
• Parties: CHISENALL v. THOMPSON
• Court: Missouri Supreme Court

Page 335

252 S.W.2d 335

363 Mo. 538

CHISENALL v. THOMPSON.

No. 43007.

Supreme Court of Missouri, Division No. 2.

Oct. 13, 1952.

Rehearing Denied Nov. 10, 1952.

Finch & Finch, Freeland L. Jackson, Cape Girardeau, for appellant.

Joslyn & Joslyn, Charleston, for respondent.

WESTHUES, Commissioner.

This is an action for damages for personal injuries. Plaintiff Chisenall lost his right hand when he attempted to remove cornstalks from between the revolving rollers of a corn picker without first placing the power take-off lever in neutual. At the time he was injured, he was operating the picker on the defendant's (his employer's) farm. The suit was first filed in Mississippi County, Missouri. A change of venue was taken by plaintiff and the case was tried in Scott County. A jury returned a verdict for plaintiff in the sum of $10,000 and from the judgment entered, the defendant appealed.

The case was submitted to a jury on two alleged charges of negligence: First, that the defendant instructed plaintiff 'that the best and quickest way to clean the picker rolls on the cornpicker was by leaving the rolls in operation.' Second, failure to instruct plaintiff that cleaning the corn picker while the rolls were in operation was dangerous. The defendant interposed, and the court submitted by instruction, contributory negligence as a defense. Defendant contends that plaintiff was guilty of contributory negligence as a matter of law.

The evidence disclosed that plaintiff had performed labor on farms, had driven trucks and tractors, and had also operated a combine. He had been employed by defendant Finley Thompson 'approximately a year' prior to the time of his injury. In the fall of 1950 plaintiff and others were engaged in gathering corn for the defendant. A number of corn pickers were being operated. A new Case two-row picker which defendant purchased that fall was being driven by one Partain. Plaintiff's duties were to haul the corn by truck from the elevator to the granary. About December 10, plaintiff was assigned to operate the Case machine whereupon he 'proceeded to grease it and go to the field.' That plaintiff was on the Thompson farm when the new Case picker was delivered and not entirely unfamiliar with it is noted in his testimony following 'Q. I presume you looked it over like the rest of the boys did? A. Yes, sir.

'Q. I presume you looked it over and inspected it to see how it operated and what it looked like? A. I passed my approval on it, yes.

'Q. Was there anything about it too complicated for you to understand before you passed your approval on it there? A. No. sir.'

Plaintiff had operated the Case picker 'from five to eight days' before he was injured on December 21, 1950. The machine had choked many times. This was occasioned by a rainy season which resulted in the ground being soft; the cornstalks instead of going down through the rolls on the picker would often pull loose at the roots and drag, thereby choking the machine. Plaintiff had cleaned the machine by pulling the stalks from beneath the machine while the rollers were revolving. At other times he had placed the power take-off lever in neutral and removed the stalks, cutting those which could not be pulled loose. He had also followed the dangerous method, that of removing the stalks from the top side of the rollers while they were revolving. The manner in which plaintiff was injured was described by him as follows:

'Q. Do you know approximately how many days you may have operated the picker prior to losing your hand? A. From five to eight days.

'Q. Tell the jury how it came about and explain how your hand was lost. A. About four o'clock that afternoon my machine choked up. We just had a small amount of corn in the field and we were all trying to hurry. When the machine clogged I got underneath and pulled on a few loose ones I could get hold of without danger to myself. When I looked in the rollers where the corn gathers and goes up on the chain I saw a few stalks lodged here and there. I cleaned them out. There was one lodged at the top end of the rollers and I got hold of it. It was the last one. As I went to pull up on it the rollers had a tendency to get a new hold on the stalk and yank it down. Before I knowed it I was in it, too.'

Plaintiff's testimony was as follows as to the method he used in cleaning the machine the first day he operated it:

'Q. On the first day you operated that picker what method did you use to unchoke the stalks from between the rollers? A. I would stop the tractor as soon as I would see it choke up and take my power take-off out of gear and go back of the machine when it was stopped and pull and dig them out. They are tight when wedged in there. If you can't pull them out you have to cut them off with a knife, piece by piece.

'Q. Is that what you did the first day? A. Yes, sir.

'Q. Did it become choked frequently in that way? A. Yes. Several times during one round.'

The corn picker performed a series of operations: the rollers (comparable to those of a wringer of a washing machine) rolling downward pulled the stalks through thereby squeezing the ears off and a chain moved the ears into an elevator; from there they were carried into a wagon. When the rollers became clogged, it was necessary to stop the tractor to remove the stalks. Witnesses, including the plaintiff, testified this could be done in several ways. Since the rollers revolved downward, the stalks could be removed by the operator's getting underneath the machine with the power take-off lever still in gear and pulling the stalks through the rollers. This method was considered by all as not a dangerous one. A second safe way was to put the take-off lever in neutral and remove the stalks from the upper side of the rollers, cutting with a knife those stalks which could not be thus pulled loose. A third method was to let the rollers continue to revolve while pushing the stalks through the rolls. This method was considered dangerous because the rolls moving at about 700 or 750 revolutions per minute would pull the stalks down and have a tendency to jerk the cleaner's hands into the rolls.

Plaintiff's testimony was in effect that neither defendant nor anyone else instructed him in operating or unchoking the machine. He stated that the defendant came to the filed after plaintiff had operated the machine for several days; that the machine choked and the defendant helped him clean it; that with the rollers revolving he went underneath and pulled some stalks through while the defendant pushed the stalks down through the rollers; that the defendant told him that was the best and quickest way to clean the machine. Further testimony was as follows:

'Q. Did Mr. Thompson ever give you any orders or instructions? A. No, sir.

'Q. He never ordered you to do this in any particular way? A. No, sir.

'Q. He never instructed you in any way how to clean out the machine when it was clogged? A. No, except when it was running it was the fastest and best way.

'Q. He never ordered you to do it that way? A. No, sir.'

It was also in evidence that there was a warning sign on the front of the picker with the words 'Be Careful' printed in large type. Then in smaller type there were listed five items. Numbers 2, 3, and 4 read as follows:

'2. Stop machine to adjust and oil.

'3. When mechanism becomes clogged, disconnect power before cleaning.

'4. Keep hands, feet and clothing away from power-driven parts.'

Plaintiff testified that he at no time, prior to the day he was injured, had read the warning sign. Plaintiff was twenty-either years old, with good eyesight, and could read and write, having had an eighth grade education.

We are of the opinion that plaintiff was guilty of negligence as a matter of law; that he realized it was dangerous to clean the picker by removing the stalks from the top side of the rollers while they were revolving. The danger was obvious to anyone even with limited experience in operating machinery. He knew it was safe to clean the machine while the power take-off lever was in neutral. He also knew it was safe...