Dobson v. Jewell

• Decision Date: 09 September 1971
• Docket Number: No. 54526,54526
• Citation: 189 N.W.2d 547
• Parties: Loren DOBSON, Appellant, v. Russom JEWELL and Walter Schumacher, Appellees.
• Court: Iowa Supreme Court

Page 547

189 N.W.2d 547

Loren DOBSON, Appellant, v. Russom JEWELL and Walter Schumacher, Appellees.

No. 54526.

Supreme Court of Iowa.

Sept. 9, 1971.

James Furey, Carroll, for appellant.

G. Robert Sackett, of Willis & Sackett, Perry, and Gerald W. Magee, of Cudahy & Wilcox, Jefferson, for appellees.

MASON, Justice.

This is a negligence case for injuries sustained in a farm accident. Loren Dobson brought a law action against Russom Jewell, a farm owner, and Walter Schumacher, her tenant, on the theory defendants were negligent in failing to provide Dobson with a safe place to work. The case was tried to a jury. At the close of plaintiff's case a verdict was directed in favor of defendant Schumacher; the case then continued against defendant Jewell and the jury returned a plaintiff's verdict for $5000. Jewell moved for judgment notwithstanding the verdict and in alternative, for new trial. Her motion for judgment notwithstanding was sustained.

Plaintiff is appealing from the court's rulings directing a verdict in favor of Schumacher and granting Jewell judgment notwithstanding the verdict.

Our review is on errors assigned. Rule 334, Rules of Civil Procedure. In considering the sufficiency of the evidence of defendants' negligence as against the motions for directed verdict and judgment notwithstanding the verdict, we view the evidence in the light most favorable to plaintiff. This is the effect of rule 344(f), par. 2, R.C.P. Ling v. Hosts Incorporated, 164 N.W.2d 123, 124 (Iowa 1969). It is likewise viewed when appeal is taken from judgment on verdict for plaintiff. We need consider only the evidence favorable to plaintiff whether or not it is contradicted. Miller v. Young, 168 N.W.2d 45, 51 (Iowa 1969).

Mrs. Jewell owned a farm near Coon Rapids in Greene County on which she had lived a number of years. In the fall of 1966 Mrs. Jewell decided to move to Perry. She had cattle on the farm and was interested in making arrangements with someone to look after them after she moved. She was also interested in finding a tenant to live on and operate the farm and talked to Dobson to inquire if he knew a person who would make a good tenant. That fall Mrs. Jewell rented the farm to defendant Schumacher for 1967.

The same fall Mrs. Jewell also made an oral agreement with Dobson, who in past years had done some carpenter work in repairing farm buildings for her, to look after her cattle. Dobson had worked with livestock most of his life. For a number of years before the accident he had bought and sold cattle and in the fall of 1966 had helped sort cattle on the Jewell farm and get them ready for sale.

Under the agreement it was the tenant's responsibility to plan the crops and feed all the livestock. Dobson was to be paid $200 a year for his duties which he described to 'just sort of keep an eye on things and report to' her after she moved. In the event he did any physical labor for Mrs. Jewell he was to receive additional pay.

The cattle on the Jewell farm in 1967 were not owned by Mrs. Jewell and Schumacher as partners. Each owned definite animals. About a week before the accident which gave rise to this lawsuit, Dobson talked with Schumacher about vaccinating and castrating the calves which were to be held over. Mrs. Jewell had about 20 and Dobson, 10 or 11. Arrangements were made with a veterinarian who fixed November 7 as the date to do the necessary work.

On the appointed day Dobson arrived at the Jewell farm about 2 p.m. Two veterinarians arrived at the same time bringing their own chute. Schumacher and another man were also there to help.

There were no permanent pens on the Jewell farm to be used for this type of work. So Schumacher and Dobson carried what plaintiff described as a practically new steel farm gate with woven wire from the barn to make a temporary pen in one corner of the hog house. The veterinary chute was placed at the door in the east end of this building. The gate was fastened at one end with a log chain to the chute and swung around to make a triangular pen in the corner of the building. After the calves were herded into the hog house, four to six at a time were driven into this pen. From the pen one at a time was put in the chute and let into the open yard after the veterinary work was completed.

Schumacher was stationed inside the pen to push the calves into the chute. Plaintiff stood outside to hold the gate and prevent escape of any calves from the pen into the larger area of the hog house.

This process was repeated until all but two animals had been vaccinated and castrated. As one animal was in the chute, the remaining animal in the pen 'got excited, went wild, jumped up, and stuck its front feet through the gate,' hit Dobson, knocked him down and came over the top landing on him. Dobson suffered a broken hip.

Dobson testified they had used the same arrangement before and it worked satisfactorily. Neither Mrs. Jewell nor Schumacher suggested any different arrangement for penning and separating the calves. Mrs. Jewell had made no inspection the day of the injury of the facilities for sorting and handling the calves for vaccination. About two weeks before Dobson had mentioned to her they were going to vaccinate.

Plaintiff said no one asked him directly to come out and help with the job. He just felt that he would come and help with the work that had to be done. Dobson had seen the gate before when visiting the Jewell farm and hadn't noticed anything wrong with it. On cross-examination Dobson was asked when he first noticed that the gate or anything else was unsafe. He answered, 'I didn't.'

With the exception of plaintiff's testimony bearing on the nature and extent of his injuries and pain he experienced therefrom, the foregoing is a fair summary of all evidence, viewed in the light most favorable to plaintiff, upon which he bases his claim for damages.

Originally, plaintiff had alleged defendants were negligent in failing to provide him with a safe place to work. This was expanded by amendment before trial by alleging defendants were negligent in failing to provide facilities which would have permitted plaintiff to safely assist in sorting and treatment of livestock on the premises.

At the conclusion of his evidence, plaintiff moved the court for leave to amend to conform to proof. He proposed to add seven paragraphs to the petition and, of course, some paragraphs were divided into subparagraphs.

In his amendment to conform to proof, plaintiff was granted leave to amend by alleging Jewell was negligent in failing (a) to provide plaintiff a safe place to work as required by section 88.14, The Code and (b) to provide a safe place for plaintiff who was her employee at the time to work. Erickson v. Erickson, 250 Iowa 491, 498, 94 N.W.2d 728, 732.

Plaintiff also proposed in his amendment to allege plaintiff was employed by Walter Schumacher for the purpose of assisting with the handling, vaccinating and castrating of calves owned by him on November 7, 1967 and that Schumacher was the agent or servant of Mrs. Jewell assisting with the handling, vaccination and castration of calves.

The application to amend in this respect was denied.

The court in ruling on plaintiff's motion to amend disposed of the motion by separately sustaining or denying each proposed paragraph. Rule 118, R.C.P.

Although no complaint is made on appeal as to these rulings, we make reference to them in order to set the stage for consideration of plaintiff's theory of recovery.

The relationship of master and servant as between plaintiff and Jewell is admitted in the pleadings.

Plaintiff, by the grounds of negligence alleged, in effect asserts defendants' conduct constituted a breach of their duties (1) to provide plaintiff with a safe place to work and (2) to use reasonable care to provide and maintain for plaintiff reasonably suitable and safe appliances, facilities and tools with which to work. Van Aernam v. Nielson, 261 Iowa 1115, 1117, 157 N.W.2d 138, 140.

There is an obligation on the master or employer to use reasonable care and diligence to provide and maintain a reasonably safe place for his employees to work. It is both statutory and by judicial pronouncement. Van Aernam v. Nielsen, 261 Iowa at 1122, 157 N.W.2d at 143 and authorities cited.

Speaking of the duty of the master or employer to furnish his employee reasonably safe instrumentalities with which to work, we said in Kregel v. Kann, 260 Iowa 1330, 1333-1335, 152 N.W.2d 534, 536--537:

"It is a settled rule that an employer must use reasonable care to provide and maintain for his employees reasonably suitable and safe appliances, machinery and tools with which to work.' * * * (citing authorities)

'However, the employer is not an insurer of the safety of the tools, machinery or appliances, nor of the safety of the employee in using the instrumentalities furnished but is only liable for negligence. * * * (citing authorities)

'The employer must exercise reasonable care to eliminate dangers which are not the usual or ordinary incidents of the service when he has exercised such care. * * * (citing authorities)

'* * *.

'In determining whether the employer exercised reasonable care there is no absolute standard to which his conduct must conform. Although the employer's duty is to exercise reasonable care whether the work is comparatively safe or extremely dangerous, the duty becomes more imperative as the risk increases. * * * (citing authorities)

'While the duty of the employer to provide his employee with reasonably safe tools with which to work is owed alike to the young and old, skilled and unskilled, whether the employer has performed such duty depends in some degree on the experience, maturity, intelligence, and discretion of the employee. * * * (citing authorities).'

It was plaintiff's duty to establish that defendants failed to exercise the care imposed upon them.

Stated in other words, where recovery is sought on the...