Groat v. Clausen
| Decision Date | 06 June 1941 |
| Docket Number | 31138 |
| Citation | 298 N.W. 563,139 Neb. 689 |
| Parties | LOLA GROAT, SPECIAL ADMINISTRATRIX, APPELLANT, v. ARTHUR CLAUSEN, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Washington county: JOHN W YEAGER, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. A farming and stock-feeding business is not a plant, within the meaning of section 48-409, Comp.St.1929.
2. Rules of the department of labor, adopted pursuant to the provisions of section 48-412, Comp.St.1929, are not applicable to a farming and stock-raising business, as disclosed by the facts in the instant case.
3. " Contributory negligence is conduct for which plaintiff is responsible, amounting to a breach of duty which the law imposes upon persons to protect themselves from injury, and which, concurring and cooperating with actionable negligence for which defendant is responsible, contributes to the injury complained of as a proximate cause." Klement v. Lindell, Neb., 298 N.W. 137.
4. " Where the evidence establishes that the plaintiff was guilty of negligence more than slight, it becomes a question for the court, and it is the duty of the court to direct a verdict for the defendant." Klement v. Lindell, Neb., 298 N.W. 137.
5. " An employee assumes risks not ordinarily incident to his employment, provided he knows of them and appreciates the danger, or provided they are so plainly observable that he must be presumed to know them and to appreciate the danger." Corley v. Hubbard, 129 Neb. 38, 260 N.W. 551.
6. Where a person fails to use ordinary care for his own safety and knowingly and of his own volition exposes himself to obvious danger, he is guilty of contributory negligence.
7. Record examined, and held insufficient to sustain burden placed on plaintiff, to prove that the servant was induced, by a master's promise to repair, to begin or continue to work with defective appliances and using such appliances, without being guilty of contributory negligence, and without assuming the risk of injury from such defects.
Appeal from District Court, Washington County; Yeager, Judge.
Action by Lola Groat, special administratrix of the estate of Richard Groat, deceased, against Arthur Clausen to recover for the alleged wrongful death of an employee of the defendant. From an adverse judgment, the plaintiff appeals.
Judgment affirmed.
R. B. Hasselquist, for appellant.
A. C. Debel and Chatt & Ellenberger, contra.
Heard before PAINE, CARTER and MESSMORE, JJ., and SPEAR and FALLOON, District Judges.
The personal representative of the deceased brought this action, in behalf of the widow and next of kin, for the wrongful death caused by the alleged negligence of the defendant. The plaintiff's amended petition alleged negligence on defendant's part in failing to provide and maintain a guard over a revolving shaft on which oil cups and connections protruded, used in operating a silo cutter from the power take-off of a tractor, and in failing to provide and install a guard furnished by the manufacturer. Other allegations of the petition referred to section 48-412, Comp. St. 1929, and to rules and regulations furnished by the department of labor, all of which will be discussed in the opinion as occasion requires. The petition further alleges common-law negligence on defendant's part in failing to properly guard dangerous machinery. Defendant's answer alleged contributory negligence, on the part of the decedent, more than slight and assumption of the risk. At the conclusion of all the evidence, defendant moved for a directed verdict, which was sustained by the trial court. Motion for a new trial was overruled. Plaintiff appeals.
The record discloses: The defendant is engaged in general farming and stock-raising in Washington county, Nebraska. His farm consists of 380 acres of land, all but 80 acres under cultivation, and all in one piece, with the exception of 80 acres near Nashville, Nebraska. The defendant had about 200 head of cattle, 25 to 30 hogs, and some horses. The deceased, Richard Groat, 34 years of age, started to work for the defendant about two years prior to December 14, 1938, the date of the accident, as a general farm hand, to do all kinds of work necessary and incident to feeding stock, repairing fences and buildings, etc. He lived, with his family, in a house furnished by defendant which was opposite defendant's home. In September or October of 1937 the defendant purchased a Ronning feed cutter harvester. It came equipped with a guard, to be used to cover the shafting which connected the cutter with the tractor. This guard, weighing from 10 to 15 pounds, is half-moon in shape, about three feet long, with a place on the cutter to bolt it on. The deceased on one occasion had attempted to attach the guard, but it would not fit. This occurred in 1937 when the machine was being put together. The deceased told Gordon Clausen, son of the defendant, that "he could probably use it (the shield) if he took the other shield off (referring to the funnel-shaped shield where the cutter is attached to the tractor) but it would be more dangerous without the other shield," referring to the tractor shield. When the cutter was hooked up to the Oliver tractor, owned by defendant, the deceased made a new hitch, had the shaft sawed off by a blacksmith, as the hitch with which the cutter was equipped would not pull the shaft high enough to run a true line.
Before his employment by the defendant, the deceased had been a truck driver, and for a short period of time was engaged, with his brother, in the garage business in Charter Oak, Iowa, as a salesman and helper. He possessed mechanical ability and at odd times had been employed in farm work by various persons, and, before he obtained steady employment with the defendant, had been employed by him at times. In the spring of 1933 he was employed by a neighbor of defendant to cut wood. He drove trucks and tractors and repaired trucks, tore down the motors, put in new pistons, ground the valves and completely overhauled them. While working for the defendant he overhauled a 1932 model Lincoln automobile and a tractor. He possessed several tools for repair purposes and was considered a good handy man with machinery.
One evening before the accident, while the deceased was sharpening knives used in the cutting machine, he complained to the defendant that such machine did not have a proper guard on it and was therefore dangerous. The defendant is purported to have said that he would see that the machine was repaired, but that he needed feed badly, and for deceased to go ahead and work with it in its present condition, and the repairs would be taken care of later. The deceased's wife claims to have heard this conversation. All of this testimony is denied by the defendant, and the record supports the denial by a preponderance thereof. The machine was not at the place mentioned when the above conversation is alleged to have occurred, had not been there for a period of 30 days, and no apparent reason is advanced as to why it should be there, in view of where it was being operated. There was no immediate necessity for feed, for the two silos were filled with fodder.
On December 14, 1938, between 9 and 9:15 in the morning the accident occurred. At the time, the machine was at the Nashville farm. Several men were employed by the defendant to feed the machine fodder from the shocks. The machine was being operated by the deceased, whose work was to keep the machine operating properly.
When the cutter is used for cutting feed, it is connected with a power take-off on the tractor by means of a long shaft, with several universal joints and oil cups, which protrude above the surface of the shaft and are not guarded. The tractor has a power take-off under the operator's seat, which guard extended out for a distance of 10 inches, but does not cover the shaft when connected with the cutter. The shaft extends over for a distance of about 10 feet, and it is for this shaft that the manufacturer provides a guard or shield, which the defendant had not placed upon it. When the cutter is in motion, the exposed part thereof revolves very fast. The only shield is the funnel-shaped one on the tractor. The morning of the accident, evidently too large a bundle went into the machine and clogged it. The motor of the tractor stopped. The deceased mounted the tractor, started it, engaged the clutch and, as he stepped down to resume the cutting, his clothing caught in the protruding oil cups in the rapidly revolving shaft, causing him to be drawn into the machinery and resulting in his death. The motor was immediately shut off, the tractor taken out of gear, and the deceased removed to a place of safety and subsequently to a hospital.
On the morning in question deceased was wearing a new blanket-lined overall jacket, about hip length, and lined like any common suit coat. This jacket was unbuttoned and was worn outside of the deceased's overalls. It had been suggested to him by another workman that he should wear the jacket inside of his overalls, for fear an accident might happen if worn outside. The deceased had on many occasions worn his jacket unbuttoned and outside of his overalls. The day was calm, a trifle chilly, and not much wind blowing.
Conversations are related as to deceased's version of the accident. One of the workmen testified that after the accident, when he first saw the deceased, he was 15 or 20 feet from the shaft. Witness said to him: "Well, Dick, how did it happen?" To which deceased replied: "Well, I just got in too much of a hurry." One witness testified that when he came back with an armful of fodder he noticed that the machine had slowed down, and he heard something flopping...
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