Frederick v. Goff

• Citation: 251 Iowa 290,100 N.W.2d 624
• Decision Date: 12 January 1960
• Docket Number: No. 49867,49867
• Parties: Billy Gene FREDERICK, Appellee, v. Paul GOFF, Appellant.
• Court: United States State Supreme Court of Iowa

Page 624

100 N.W.2d 624

251 Iowa 290

Billy Gene FREDERICK, Appellee, v. Paul GOFF, Appellant.

No. 49867.

Supreme Court of Iowa.

Jan. 12, 1960.

James & Greer, Spencer, and Kelly, Spies & Culver, Emmetsburg, for appellant.

Smith & Hanson, Emmetsburg, for appellee.

GARFIELD, Justice.

Plaintiff Frederick was severely injured in the course of his employment as a farm hand for defendant Goff. In this law action plaintiff alleges the injury was caused by defendant's negligence in providing defective equipment for plaintiff to work with. Trial resulted in a jury verdict for plaintiff upon which judgment was entered.

Defendant-appellant's sole contention here is that he was entitled to a directed verdict and judgment notwithstanding the jury verdict for three basic reasons: 1) There is no evidence of defendant's negligence; 2) the alleged negligence was not the proximate cause of the injury; 3) plaintiff assumed the risk. We will consider these grounds in this order: the first, the third and, finally, the second. We will first refer to the essential evidence. In accordance with our duty, it will be viewed in the light most favorable to plaintiff.

Plaintiff, a married man then 28, was injured Monday morning, July 15, 1957, while filling defendant's silo with oats ensilage. He had worked on defendant's farm since June 3, 1956. The equipment with which plaintiff was working was put in place during the preceding week by plaintiff and another employee, Randy Enger, under defendant's supervision. The wagon load of ensilage which was being blown into the silo when plaintiff was injured was put in place adjoining the ensilage blower the preceding Saturday. Plaintiff was working alone when injured. The equipment in use consisted of an ensilage blower, a self-unloading wagon which dumped the ensilage into the hopper of the blower, and two tractors which generated the power. One tractor supplied power to the blower, the other the power to move the false endgate and ensilage from the front of the wagon to its its rear where it fell into the hopper of the blower. The ensilage blower consisted of a hopper eight feet long, an auger at the bottom of the hopper by which ensilage was moved toward the fan and the fan that blew the ensilage up through a pipe extending to the top of the silo. We set out here a reproduction of an exhibit showing the ensilage blower.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Bottom of the pipe leading to the top of the silo was affixed to the top of the inverted funnel-shaped device at the upper left of the fan. The U-shaped rod at the fan end of the hopper, just below the name 'Gehl,' is the lever which starts and stops the auger. The lever is pulled toward the hopper to start the auger and pushed back against the fan to stop it. The rear of the wagon, eight feet wide, filled with ensilage was backed against the reader's right side of the hopper. Plaintiff was standing on the left, south, side of the hopper. The silo was on his left, west--at the fan end of the blower. Defendant had directed plaintiff to unload the wagon filled with ensilage and to hurry in doing it so he could work in the field.

Shortly before plaintiff was injured the pipe leading to the top of the silo had become loose and turned out of position. Randy Enger had put up the pipe. Plaintiff stood on the left, south, edge or lip of the hopper, reached up and tightened the pipe with his hands. It could not be tightened readily while standing on the ground because the necessary leverage could not be applied from such position. When the blower was in use the pipe would turn several times a day and had to be tightened. Defendant himself had tightened the pipe while standing on top of the housing which enclosed the fan.

At about the time the pipe to the silo turned out of position the power which operated the unloading device on the wagon ceased to function when the knuckle came off the splined (grooved) end of the shaft on the power take-off. These two parts were worn, did not fit together properly and had become disconnected on several prior occasions, including three or four times while the same load was being unloaded that morning. The previous week these parts had slipped off about once to each load of ensilage put into the silo.

After turning the pipe into place plaintiff picked up the shaft that had fallen off and put it back in place but he could not connect the two grooved ends without driving them together with a bar. He then stepped down from the edge of the hopper to get a bar hanging on the silo to use for this purpose. After picking up the bar he stepped back onto the edge of the hopper with his right foot so he could drive the knuckle on to the end of the shaft that supplied power for unloading the wagon. He reached up for the endgate of the wagon, which was over the hopper, to pull himself upright onto its edge, when his right foot slipped into the hopper, fell against the auger and was propelled by it into the fan. In falling, his left hand inadvertently came in contact with the lever (before referred to) which started the auger moving. Within three or four seconds plaintiff was able to push the lever back against the fan and thus stop the auger. However the foot had already been injured.

Plaintiff could not put the disconnected knuckle back on the shaft while standing on the ground at the operator's side of the blower. On the three or four previous occasions that morning when the knuckle slipped off the shaft, plaintiff walked to his right around the wagon, climbed a board fence 4 1/2 to 5 feet high and walked back between the wagon and silo to the power shaft. It took him about five minutes to do this and replace the shaft and knuckle. There was not more than three feet of clearance between the drive belt and the wagon where plaintiff walked. On these prior occasions he did not shut off the motor in the tractor (which would have stopped the drive belt from revolving) because the starter on the tractor was not working. To start the motor it was necessary 'to short it out with a wrench onto the terminals to make contact with the starter.'

Plaintiff had been working at this task about 45 minutes that morning and about a third of the load was unloaded when he was injured. When there were no stoppages a load of ensilage could be blown into the silo in 15 to 20 minutes. The added time on this occasion was mainly due to interruption of the power for the unloading device on the wagon when the knuckle slipped off the shaft and the time necessary to replace it.

Defendant was fully aware of the worn condition of the knuckle and splined end of the shaft. When the two parts became disengaged while in operation the grooves would be 'jimmed' and had to be filed down before they could be put back together in working order. This occurred several times before the morning in question. Referring to these worn parts the week before plaintiff's injury, defendant had said, 'We would have to see about fixing it--it should be fixed.'

I. Defendant's negligence. It is a settled rule that an employer must use reasonable care to provide and maintain for his employees reasonably suitable and safe applicances, machinery and tools with which to work. Von Tersch v. Ahrendsen, 250 Iowa ----, 99 N.W.2d 287, 289, and citations; Degner v. Anderson, 213 Iowa 588, 589, 239 N.W. 790; Swaim v. Chicago, R. I. & P. R. Co., 187 Iowa 466, 477, 174 N.W. 384; 56 C.J.S. Master and Servant §§ 201, 206.

There is clear evidence the knuckle and splined end of the shaft which became disengaged were worn, defective and not suitable for the work plaintiff was directed to perform with it and other equipment to which it was attached. Also, as stated, that defendant knew of this defective condition in time to have repaired it before plaintiff was injured. The finding is warranted, too, this condition rendered the equipment unsafe for plaintiff to work with. There is little doubt there is substantial evidence to support the one specification of negligence submitted to the jury--providing defective equipment for plaintiff of work with.

II. Assumption of Risk. The contention urged here that defendant was entitled to a directed verdict, or judgment notwithstanding the jury verdict, because plaintiff assumed the risk of injury, was not made in the trial court as a ground of the motion to direct, motion 'for judgment notwithstanding,' or otherwise. We have frequently held a motion to direct may not be supported upon appeal by a ground not urged in the trial court. John Rooff & Sons, Inc. v. Winterbottom, 249 Iowa 122, 127, 86 N.W.2d 131, 135, and citations. These precedents merely apply the familiar rule that an appellant may not urge for the first time here a contention not raised in the trial court. Neibert v. Stone, 247 Iowa 366, 367-368, 72 N.W.2d 763, 764, and citations; Signer v. Crawford County, Iowa, Board of Education, 247 Iowa 766, 768, 76 N.W.2d 213, 214, and citations. Defendant is therefore not entitled to urge this contention now.

Notwithstanding the above we will say we think assumption of risk does not appear as a matter of law and it was proper to submit this issue to the jury. It is an affirmative defense and the burden to prove it rested upon defendant. Erickson v. Erickson, 250 Iowa ----, 94 N.W.2d 728, 732, and citations; Jackson v. Chicago, M., St. P. & P. R. Co., 238 Iowa 1253, 1261, 30 N.W.2d 97, 102, and citations. It is seldom a party who has the burden on such an issue establishes it as a matter of law. Jackson case and citations; Ruble v. Carr, 244 Iowa 990, 993-994, 59 N.W.2d 228, 230-231, and citations.

If defendant was negligent in the respect alleged plaintiff did not assume the risk of injury therefrom by continuing in the work unless in the usual and ordinary course of his employment it was his duty to repair the equipment or remedy the defect therein, and even if such were his duty, he assumed no...