Degner v. Anderson

• Decision Date: 16 December 1931
• Docket Number: No. 41053.,41053.
• Citation: 239 N.W. 790,213 Iowa 588
• Parties: DEGNER v. ANDERSON.
• Court: Iowa Supreme Court

213 Iowa 588

239 N.W. 790

DEGNER

v.ANDERSON.

No. 41053.

Supreme Court of Iowa.

Dec. 16, 1931.

Appeal from District Court, Buena Vista County; James De Land, Judge.

Action at law by a farm labor employee against his employer to recover damages for personal injury received in operating some farm machinery. The court directed a verdict for the defendant. Plaintiff appeals. The facts appear in the opinion.

Affirmed.Charles E. Pendleton, of Storm Lake, for appellant.

Whitney, Whitney & Stern, of Storm Lake, for appellee.

GRIMM, J.

The defendant (appellee) in this case operates a farm in Northwestern Iowa. He employed the plaintiff (appellant) in December, 1929, as a farm hand. On or about the 20th day of September, 1930, the plaintiff and the defendant were engaged in operating, on defendant's farm, what is known as a Thieman ensilage cutter. The plaintiff was operating the cutter, and the defendant was driving the wagon which caught the ensilage as it passed from the machine. The plaintiff had operated this machine for thirty or forty days, and had, during that time, cut approximately forty acres of corn with the machine. As a part of this machine, there is what is known as the gathering or carrying chain. The power for operating this gathering chain is furnished by the wheels of the machine as it is drawn by horses or tractors.

The cutting machinery is operated by a Ford motor which is carried on the machine. In other words, the gathering chain and the cutting knives are driven by independent sources of power; the chains being operated by the draft of the machine and the knives by the power of the Ford motor. The operation of the chain is thrown out of gear by a gear-shift lever, the exact location of which on the machine does not appear in the record, but at all events apparently the driverof the horses as he sits on the machine may throw the chain in or out of gear by operating the gear-shift lever. The operation of the knives being wholly independent of the movement of the chain, the knives, if the motor is in action, continue to operate under the power of the Ford motor whether the chain is in operation or not.

On the day of the accident in question, the chain had, on two or three occasions, come off the sprockets on which it operated, and the plaintiff had stopped the machine and replaced it. On one occasion, he did something towards tightening the chain so it would not come off so readily.

Immediately before the accident, the plaintiff had driven to the end of one of the rows. By the use of the gear-shift lever, he threw the chain out of gear and proceeded to drive around the end of the corn rows. After he had lined his team for the next row to be cut, and while the horses were moving and the chain was still out of gear, the plaintiff reached over with his hand and took a grip upon the chain and shook it, as he says, to ascertain whether he had sufficiently tightened the machinery so that the chain would not come off. As he seized the chain and shook it, it suddenly began to revolve, and he lost the point of one of his fingers by catching the same in the chain machinery.

At the close of the evidence for the plaintiff, upon motion of the defendant, the court directed a verdict for the defendant, and the plaintiff appeals.

I. The principles of law involved in this controversy are quite familiar and well settled. The difficulty, if any, arises from their application to the facts in this particular case.

[1] It is the general rule that a master is required to exercise reasonable care to furnish suitable and safe tools, appliances, and instrumentalities for use in the work which the servant is expected to perform. Swaim v. Chicago, R. I. & P. R. Co., 187 Iowa, 466, loc. cit. 477, 174 N. W. 384.

[2] If the machinery became out of repair so as to render it unsafe for use, and the defendant had knowledge of this fact for such a length of time before the injury that he could have remedied the defect, he is liable for the injury resulting from the defect, unless it is shown, under the rules of law, that the plaintiff had assumed the added hazard and had waived the negligence of the defendant in permitting the hazard. Kenyon v. Illinois Central R. Co., 187 Iowa, 277, loc. cit. 283, 173 N. W. 44.

[3][4] There is here neither claim nor proof that there was any promise of repair or any assumption of the hazard after the discovery of any defect in the machine and promise to remedy the same. It is fundamental that the burden is on the plaintiff to prove that the defendant was negligent. In this case, he must prove that the machinery was defective, and that the defect was the proximate cause of the injury, and that the employer had knowledge, or by the exercise of ordinary care might have known of the defect.

There is here no contention that the machine was not of a standard type and in general use. The claim is that the machine was defective. The testimony is directed to prove that the gear-shift clutch which controlled the chain was so defective that it would fly into gear; thus starting the gathering chain to move.

The plaintiff, at the time of the accident, was twenty-four years of age, and had worked as a farm hand for twelve years. He had been working for the defendant almost a year. He had operated this particular machine in the cutting of forty acres of corn for ensilage purposes, covering a period of about forty days. On cross-examination he said:

“Q. How many times had the chain come off that morning? A. Twice.

Q. Before the accident, when did it come off the first time? A. Just shortly before I got injured. * * * I got off the machine and put the chain on and then started up again. About five or six minutes the chain came off again. * * *

Q. About how many times previous to that time had you thrown the machine out of gear and it came back in without you putting it in? A. Not any.

Q. That was the first and only time? A. Yes.

Q. Had you ever seen it come out of gear before? A. No, I hadn't.

Q. Then you ran the ensilage cutter that fall all of the time? A. Yes.

Q. And that is the only time it was thrown out of gear, when it went into gear of its accord, isn't it? A. Yes. * * *

Q. You told him (the defendant) the clutch had been in bad shape, didn't you? A. No.

Q. You did not tell him that? A. No, because it wasn't.

Q. Previous to that morning it was in good shape? That is the only trouble you had with the clutch during that 30 or 40 days running the machine, wasn't it? A. Yes.”

[5] Here, then, is the plaintiff's own story from which it clearly appears that, while the chain had come off once or twice prior...