Evans v. Journeay
| Decision Date | 14 May 1986 |
| Docket Number | No. 55500,55500 |
| Parties | Fulton EVANS v. Andy JOURNEAY. |
| Court | Mississippi Supreme Court |
John H. Cox, Greenville, for appellant.
Roy D. Campbell, III, Campbell & DeLong, Greenville, for appellee.
Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.
Fulton Evans filed suit in the Circuit Court of Washington County against Andy Journeay for personal injuries sustained when the left sleeve of his coat became entangled in the drive shaft of an Alis-Chalmers gleaner M2 combine. At the conclusion of the testimony for Evans, the lower court directed a verdict in favor of Journeay, and Evans has appealed to this Court contending that the lower court erred in granting the directed verdict.
The complaint charged that appellee was negligent in (1) failing to provide an adequate number of co-employees, (2) failing to provide proper and suitable supervision, (3) that the area in which appellant was required to work was unsafe and hazardous, and (4) failing to properly provide maintenance and repair to defects in the machinery of which he had knowledge or which reasonably should have been discovered and repaired. Appellee denied the allegations of the complaint and set up as an affirmative defense that appellant's negligence was the sole proximate cause of the accident and his injuries.
Without attempting to describe in detail the combine machine and its operation, for the purposes of this discussion, it is sufficient to state that the combine consisted of a front end, the header, and the rear, which was the body of the combine itself. In the front end, or header, near the front left tire, were situated the thresher beater chain drive (chain drive), and the fly wheel with a part of the header drive shaft (drive shaft). The header machinery takes the stalks which are being cut and harvested and pulls them into the throat of the combine and thence into the rear of the combine, which separates the grain from the stalks. The rotating chain drive and drive shaft supply the power for cutting and pulling in the stalks to the combine. The drive shaft and the large left wheel of the combine were approximately 15 to 18 inches apart.
Appellant began work with appellee as his only full-time employee in 1982. In late August or early September of that year, appellee leased the subject combine and he and appellant discussed the fact that appellant would operate it. There follows the training, experience and familiarity of appellant with combines and other type machinery:
(1) Appellant was born and reared on a farm and lived on farms all of his life. He first began driving farm equipment when he was 10 years old and when he was approximately 20 years old he began driving cotton pickers and combines and has operated them for the past 18 or 19 years.
(2) After a sojourn in Florida picking fruit, he returned to the Mississippi Delta in 1966 and resumed farm work, driving farm equipment, including combines and cotton pickers. In 1979 he worked on a farm where he operated various types of farm equipment for three (3) years and, when the equipment broke down in the field, he would repair that equipment in the field himself.
(3) In 1980 and 1981, he worked for Hearn's Repair Shop in Arcola, Mississippi, which was the last job he held prior to going to work for appellee. At Hearn's Repair Shop he was responsible for repairing different types of farm equipment. His work at Hearn's required him to know and learn more about combines and cotton pickers and their operations. He made repairs to transmissions, headers, and different parts of combines. He understood how the drive shaft on a combine worked and knew that power to the header came to the drive shaft and that on combines, such as the one here, the drive shaft was located on the back side of the header.
(4) While working for Hearn's, he read various manuals on farm equipment, and used them in making repairs. He knew that the present combine had an unshielded drive shaft and he knew the danger involved in working around a running drive shaft and being exposed to one.
(5) Appellant admitted that any mechanic understands that one does not get near an exposed drive shaft when the shaft is turning and knew that if he was too near the drive shaft, it would snatch his clothing.
(6) Before beginning the operation of the subject combine, appellee obtained and furnished appellant with a manual which showed how it should be operated and lubricated. Appellant read and familiarized himself with the manual.
(7) Appellant serviced the combine by oiling the chains and greasing the parts with alemites, checking the water and cleaning the oil filter. He did some of that work daily and oiled the chains approximately twice a week.
(8) Prior to the accident, appellant serviced the chains on the combine by spraying them with an aerosol spray, with the combine turned off. He had not serviced the chain drive, the engine or the drive shaft while they were running. Appellant stated that appellee had never given him any instructions to oil the chain while the combine was running.
(9) Appellant had superior knowledge concerning the operation and repair of the subject combine to that of appellee.
The accident occurred on November 15, 1982. On the preceding day, appellant had run out of aerosol spray in lubricating the chains, but he had not informed appellee of that fact. Appellee had no knowledge that appellant was out of the spray, and, in the past, when appellant needed aerosol spray, he would either ask appellee to buy more for him or appellant would go to the store and buy the spray himself, charging it to appellee. On the date of the accident, appellee passed by two farm supply stores that sold aerosol spray, but he failed to obtain the spray, explaining that he simply never thought about it.
Appellant picked up a co-employee, O.B. Wilson, and they drove to the field where the combine was parked, and began to ready for the day's work. Appellee was not present. Wilson first greased the combine with a grease gun while the machine was not running. When he had finished that job, appellant climbed up into the combine, cut the engine on and left both the chain drive and the drive shaft in gear. He stated that he wanted the chain drive...
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