Fick v. Wolfinger

• Decision Date: 12 May 1972
• Docket Number: No. 42879,42879
• Citation: 198 N.W.2d 146,293 Minn. 483
• Parties: Frederick Carl FICK, Appellant, v. Joe WOLFINGER, et al., Respondents.
• Court: Minnesota Supreme Court

Page 146

198 N.W.2d 146

293 Minn. 483

Frederick Carl FICK, Appellant, v. Joe WOLFINGER, et al., Respondents.

No. 42879.

Supreme Court of Minnesota.

May 12, 1972.

Rehearing Denied June 2, 1972.

O'Brien, Ehrick, Wolf, Deaner & Downing and R. P. Pearson, Rochester, for appellant.

Newcome, Wallace & Newcome, St. Paul, Holst, Vogel, Erdman & Vogel, Red Wing, for respondents.

Heard before KNUTSON, C.J., and MURPHY, OTIS, and PETERSON, JJ.

PER CURIAM.

Plaintiff, Frederick Carl Fick, injured while working as a farmhand when he came in contact with an unguarded power takeoff shaft supplying power from a tractor to a rotary chopper, brought this suit for negligence against his employers, Joe and Mary Lou Wolfinger, and the owner of the rotary chopper, Alvin Vieths. Plaintiff's claim against defendant Vieths was dismissed at the conclusion of plaintiff's case. Plaintiff's claim against defendants Wolfinger was decided against him by the jury's answers to seven interrogatories. The jury found that plaintiff was 70 percent negligent and defendants Wolfinger were 30 percent negligent; and the jury found, also, that plaintiff had assumed the risk of injury. This appeal is from an order denying plaintiff's motion for a new trial and from the judgment. We affirm.

The accident occurred late in the afternoon of January 2, 1964, on the Wolfingers' farm in Goodhue County, where plaintiff was employed. ¹ On the morning of that day, plaintiff and defendant Joe Wolfinger agreed that plaintiff should proceed to chop corn stalks, using defendant Vieths' rotary chopper. On an earlier occasion, Wolfinger had obtained Vieths' permission to use Vieths' rotary chopper and, on that occasion, plaintiff had operated the chopper without incident. Neither of them undertook to obtain Vieths' permission on this occasion, however, simply assuming that he would give permission if asked. Wolfinger testified that when he told plaintiff to use the Vieths chopper he did not know that its safety shield was missing; but in a statement which he made several weeks after the accident, Wolfinger stated that, when he had used the chopper in 'other years,' it had not had a guard.

Plaintiff was himself aware that the chopper had no safety shield when he greased it and hooked it up to the tractor. He testified that he did not at that time know that there was a shield for this particular chopper, although he admittedly knew that choppers generally came equipped with shields. He was aware of the danger of coming into contact with an unguarded power shaft when the power takeoff unit was operating, ² for he had done farmwork for years and was very familiar with the operation of tractors and power takeoff units. He knew that it was shound practice either to turn off the ignition or to put the power takeoff unit in disengaged position before getting off the tractor.

Plaintiff had no difficulty with the chopper when he began to operate it in the early afternoon. Sometime during the afternoon, Wolfinger came out to the field to talk with plaintiff and see how things were going. On this occasion plaintiff followed the sound practice of turning off the power takeoff unit and putting the tractor in park before he got off the tractor to talk with Wolfinger.

After Wolfinger left, plaintiff resumed operating the chopper. He started out in fourth gear but, since the field was rough and the power steering was giving him some difficulty, he shifted down to third gear with a half-open throttle. As he made his rounds he stood part of the time and sat part of the time. Plaintiff testified that he recalls that the sum was setting and that he had decided to make one more round before quitting for the day. He testified that the next thing he remembers is waking up in the dark and finding himself twisted and tangled in the power takeoff shaft with his head facing toward the tractor. No one other than plaintiff witnessed the accident.

Wolfinger and Harvey F. Hinrichs, both of whom arrived on the scene at approximately 5:20 p.m., in response to plaintiff's calls for help, found plaintiff entangled horizontally in the shaft with his clothes ripped off. In a statement which he made some 2 months after the accident, Wolfinger stated that as he was helping to free plaintiff he noticed that the ignition was on. At trial, however, he testified that he did not check the ignition until the following day, when he checked and found that the ignition was on, the tractor was in neutral, the throttle in low, and the power takeoff in engaged position. Plaintiff's son testified that 2 days following the accident he went to the scene with Wolfinger and found the tractor in third gear, half throttle, and the power takeoff in engaged position. Wolfinger did not remember going to the scene with plaintiff's son.

1. Plaintiff and defendants Wolfinger each contend that they were entitled to directed verdicts on the primary issue of whether they were negligent. We hold, however, that the jury could reasonably find that all of these parties were in some degree negligent and that the comparative degree of their negligence was even more clearly an issue for the jury.

With respect to plaintiff's own negligence, the jury could reasonably conclude that plaintiff got down off the tractor without first turning off the power takeoff unit and negligently got himself entangled in the power shaft. The apportionment of his comparative negligence was, under the circumstances, clearly a matter for the jury's assessment. (The jury could, from the recited evidence, also reasonably find that plaintiff had assumed the risk, a defense considered later in this opinion.)

With respect to defendants Wolfinger's negligence, the issue as to whether they breached a duty owed plaintiff is less readily resolved. Those defendants had an employer's duty to furnish their employee with reasonably safe machinery, including those safety appliances which normally come with such machinery, and to warn or instruct him as to the dangers connected with the operation of the machinery. Grussing v. Binger, 262 Minn. 345, 114 N.W.2d 699 (1962); Berg v. Johnson, 252 Minn. 397, 90 N.W.2d 918 (1958); Jenkins v. Jenkins, 220 Minn. 216, 19 N.W.2d 389 (1945); Beard v. Chicago, M. & St. P. Ry. Co., 134 Minn. 162, 158 N.W. 815 (1916); Annotation, 67 A.L.R.2d 1120, § 4. They were not wholly absolved of this duty merely because plaintiff was himself aware of the risks of using the unsafe machinery. Grussing v. Binger, Supra; Hightower v. Edwards, 445 S.W.2d 273 (Mo.1969). As we stated in Grussing (262 Minn. 349, 114 N.W.2d 702), 'since it is the duty of the servant to obey orders given to him if not manifestly unreasonable, the employer must use reasonable care to protect the servant from dangers in execution of the orders and will be held liable for his negligence in this regard.' The jury could find, as implicitly it did, that defendants Wolfinger breached their duty either to furnish plaintiff with a safe chopper or to instruct him that a safety shield was available and that he should find and use it. But such finding of negligence did not, under the circumstances, compel a finding that their negligence was a major contributing cause of plaintiff's injury.

2. We must turn, therefore, to those other issues asserted by plaintiff as grounds for a new trial. The first of them is that the trial court denied him a fair trial by granting counsel for defendant Vieths and counsel for the Wolfingers each three peremptory challenges, to which plaintiff made seasonable objection. Minn.St. 546.10 provides, in part:

'* * * Each party shall be entitled to three peremptory challenges * * *. The parties to the action shall be deemed two, all plaintiffs being one party, and all defendants being the other party, except, in case two or more defendants have adverse interests, the court, if satisfied that the due protection of their interests so requires, may allow the defendant or defendants on each side of the adverse interests not to exceed three peremptory challenges.'

In Eilola v. Oliver Iron Min. Co., 201 Minn. 77, 275 N.W. 408 (1937), the plaintiff sued one Frederickson and Frederickson's employer for assault, claiming that Frederickson committed the assault within the scope of his employment. Defendants there, as here, interposed separate answers denying liability and appeared at trial by separate counsel. We held that the trial court correctly refused to grant each defendant three peremptory challenges, and indicated that defendants' interests were not adverse when there were no cross issues between them. There were likewise no cross issues between the Wolfingers and Vieths. It is true that each party wanted to escape liability and preferred that the other suffer rather than itself, but that alone does not mean that the parties had adverse interests. Carr v. Davis, 159 Minn. 485, 199 N.W. 237 (1924). See, also, Annotation, 32 A.L.R.3d 747, § 4(a).

We are not aware of any Minnesota cases dealing with the effect of the trial court's allowing an excessive number of peremptory challenges, but an annotation on the subject, in 95 A.L.R.2d 957, 962, summarizes the decisions from other jurisdictions as follows:

'As to the effect of allowing a greater number of peremptory challenges than is specified by statute, that is, whether the prejudicial character of the error must be shown or will be presumed from the mere departure from the exact requirements of the statute, the decisions in civil cases, from their inception to the present, are not uniform, although there is a tendency, perhaps, in favor of the necessity of showing prejudice.

'The numerical weight of authority in civil cases supports the rule that a judgment will not be reversed for error in allowing one or more peremptory challenges in...