Grant v. Nihill, 4854.

• Docket Nº: No. 4854.
• Citation: 64 Mont. 420
• Case Date: October 19, 1922
• Court: United States State Supreme Court of Montana

64 Mont. 420

GRANT
v.
NIHILL.

No. 4854.

Supreme Court of Montana.

Oct. 19, 1922.

Commissioners' Opinion.

Appeal from District Court, Fergus County; Jack Briscoe, Judge.

Action by Walton H. Grant, administrator of the estate of Peter Anderson, deceased, against Patrick Nihill. From a judgment for plaintiff and an order overruling defendant's motion for new trial, defendant appeals. Reversed, with directions to dismiss.

Blackford & Huntoon, of Lewistown, and Walsh, Nolan & Scallon, of Helena, for appellant.

S. P. Williams, of Imperial, Cal., R. J. Anderson, of Lewistown, and Wheeler & Baldwin, of Butte, for respondent.

LENTZ, C. C.

Plaintiff obtained a judgment for $15,000 for injuries received on May 24, 1917, from being run over by a traction plow which was operated on defendant's farm near Moore, Mont. Defendant has appealed from the judgment and from an order overruling his motion for a new trial.

The complaint alleges, among other things, negligent failure on the part of the defendant to provide plaintiff with a safe place to work and failure to warn him of the hazards incident to his employment. Defendant's answer admits the employment and the injury, denies the other material averments of the complaint, and as a special defense alleges that plaintiff assumed the risks incident to the employment.

The plowing outfit consisted of 10 mold board plows pulled by a steam traction engine. Two levers were attached to each of the 10 plows, making 20 levers in all. One lever was used in regulating the depth and the other in raising the plow off the ground. In front of or over the plows, and resting on steel girders and stringers, was a wooden platform about 3 or 4 feet wide and 10 or 12 feet long, in three sections, each section consisting of boards 2 inches thick resting in and on an angle iron frame and bolted to the steel framework below. The angle iron in which the boards rested extended around the entire outer edge of the board platform of each section and almost or quite flush with the upper surface of the boards. The individual boards of each section were attached together so that the wooden part of the platform if removed from the angle iron frame would have to come out as one piece. The wooden portion of each section was fastened to the stringers below by means of bolts, which, if in proper order, held the platform rigid. It was plaintiff's duty to stand upon this platform with his back to the engine, and operate the plows by means of the levers regulating the depth and lifting the plows out of the ground while making turns or when otherwise necessary, and also to keep the plow greased and change the plow points. The engine was operated by one Harrison Boner, with the assistance of a helper who usually did the steering, and who acted under Boner's orders. On the occasion of the injury, plaintiff, in making the turn at the corner of the field, was lifting the plows from the ground by means of the levers, when he lost his balance and fell from the platform in front of or under the plows and was run over. He testified that a rock got under the platform and raised the wooden portion out of the angle iron frame 7 or 8 inches, causing him to fall beneath the plows.

Plaintiff further testified that he started to work for the defendant, Nihill, the fore part of May, 1917, that he was employed and assigned to work on the plow by one Bert Barrick, who was defendant's foreman and manager; that he told Barrick he had had no experience with this kind of a plow, but was willing to learn; that he had formerly operated a disc traction plow, but had had no experience with the mold board variety of plow; that when he started to work Barrick spent several hours showing him how to regulate the levers and work the plow, and came out at different times afterward and showed him other things about running it; that Barrick told him Harrison Boner was to have charge of the outfit, and he would take his orders from Boner, and that thereafter Boner did give him orders, telling him when to go to work in the morning and when to quit; that he had operated the plow for about six days prior to the morning of the accident and had encountered no trouble with it; that, when he first started working, the ground was level and without rocks, but on the afternoon before the accident they began plowing in ground that was very rough and rocky; he had seen rocks underneath, but none large enough to tip the platform over; on that afternoon he first noticed that the wooden portion of the rear section of the platform was not securely fastened down; there were two bolts for the purpose of holding down the wooden portion of this section; on one of these bolts the threads were worn off so that the nut, which was on the under side, could not be screwed tight; the other was just a spike or little old bolt about the size of a twenty penny nail, which was not threaded and had no nut on it, and as a consequence, when running over the rough ground, the platform would not go steady, but worked up and down; that on the afternoon before the accident plaintiff told Boner to get some bolts and bolt the platform because it was shaky; that Boner said the platform was all right; it was not anything to be afraid of; it would not come out; it would stay down in the frame and would not tip over; that Boner said he would have the foreman get some bolts; he (Boner) did not have any that would fit; they were all too big to fit the holes; that plaintiff was inexperienced and did not appreciate the danger and relied upon the statement made by Boner; that at all times while engaged upon said plow outfit he exercised due care for his own safety; that Boner said the next forenoon he had sent for bolts, and the foreman did not get the right size; that Boner did not try any bolts to see if they would fit; that the foreman was “out there” about half an hour or so before plaintiff got hurt and “had some bolts”; that plaintiff was busy changing the plow points, and said nothing to the foreman about the loose bolts then or at any other time; that no bolts were placed in the platform before the accident; that at the time of the accident about 9 or 10 o'clock in the forenoon he was lifting the plows to make a turn at the corner of the field; he had lifted seven or eight plows, beginning at the front, and while he was standing on the rear section of the platform a rock two or three times the size of a man's hat got under the end of the platform on which he was standing and lifted the wooden portion of it up, and he was thrown over backwards beneath the plows and sustained the injuries alleged in the complaint.

Boner testified that immediately after the injury plaintiff announced that while he was starting to operate one of the levers a plow encountered an obstruction, causing another lever to fly up and strike him in the face, and that the blow knocked him off the platform. He denied that he had charge of the outfit or ever at any time gave orders to plaintiff.

Both Barrick and Boner testified that the matter of bolts was never mentioned to or by either of them, and both denied any knowledge of the alleged defect either before or after the accident. Barrick denied that he ever placed Boner in charge of the outfit or told plaintiff to take orders from him. He did testify, however, that nothing could go unless he (Boner) run the engine, and “of course he (Boner) was the main man.”

There is nothing in the record to show that the defendant, Nihill, gave Barrick directauthority to place Boner in charge of the outfit or to place the plaintiff under Boner's orders. Nihill testified that he did not give Barrick any such authority. The record further shows that Boner did some repairing on “the machinery,” and that he was the only one who actually did any repairing on the machinery. It does not appear whether this repairing was done on the plow or the engine, or both. There is some testimony in the record to show that, if anything went wrong, any one on the ontfit who knew how “was supposed to fix it.” The record further shows that Barrick was defendant's foreman in his farming operations, with general authority to direct the work and to hire and discharge the employés; that defendant was then operating four farms, consisting in all of about 4,700 acres. Three of these farms were not far from Moore, while the fourth was about 5 miles away. Barrick's duties in superintending the work were such that he did not always visit each farm every day. He traveled in an automobile and tried to visit each farm every day. There is nothing in the record to show that defendant superintended any of the actual farming operations.

The first contention is that the complaint does not state a cause of action. The sufficiency of the pleading was attacked by general demurrer, by objection to the introduction of evidence, and by motions for nonsuit and for a directed verdict.

Besides the allegation of the employment and of the damages resulting from the injury, the material averments of the complaint are as follows:

“I. * * * That plaintiff was not familiar with the work he was set to do, to wit, the regulation depths, etc., of the plows; that he has never done such work before, and that defendant and his agents were familiar with said work and the hazards incident thereto; that plaintiff was put to work by defendant on the plows, regulating the depth thereof, and in so doing had to stand and work upon a platform immediately over the said plows; that the said platform was insecurely fastened over the said plows; that the said platform was insecurely fastened and was loose and likely to rock and tilt, making the footing of the plaintiff unsafe and hazardous; that plaintiff complained to defendant and his foreman about the condition of the said platform, and was assured by the defendant and his said foreman that the said plows and platform were in a perfectly safe condition, and that no harm or injury could befall...