Heinlen v. Martin Miller Orchards

• Court: Washington Supreme Court
• Writing for the Court: OLSON; SCHWELLENBACH
• Citation: Heinlen v. Martin Miller Orchards, 242 P.2d 1054, 40 Wn.2d 356 (Wash. 1952)
• Decision Date: 17 April 1952
• Docket Number: No. 31849
• Parties: HEINLEN, v. MARTIN MILLER ORCHARDS, Inc.

Page 356

40 Wn.2d 356

242 P.2d 1054

HEINLEN, v. MARTIN MILLER ORCHARDS, Inc.

No. 31849.

Supreme Court of Washington, Department 2.

April 17, 1952.

Jerome Williams, Patrick H. Murphy, Spokane, for appellant.

Gordon H. Sweany, Carl P. Zapp, Seattle, Mansfield & Watson and R. E. Mansfield, Okanogan, for respondent.

OLSON, Justice.

At the conclusion of the plaintiff's case, in the trial of this cause before a jury, the court sustained the defendant's challenge to the sufficiency of the evidence and dismissed the action with prejudice. These rulings are assigned as error by the plaintiff in this appeal.

The facts, considered most favorably for the plaintiff, are as follows: Plaintiff was employed by defendant to work in its orchards, and, at the time of his injury, was in charge of the operation of the brush-shredding machine by which he was injured. He had operated it for about nine weeks (six weeks in 1948, and three to five weeks in 1950).

The machine may be described as follows: It is pulled by a tractor and its function is to pick up pruned branches from the ground, shred them, and redeposit them on the soil. Several pickup or rake teeth, about one inch wide, two inches in depth, and thirty, inches long, project in front of the machine and serve to scrape the prunings from the ground. The butt end of each of these rake teeth is secured to a horizontal piece of channel iron, known as the rake bar, by two bolts--one near the front edge of the rake bar and one near the rear. Along both sides of each rake tooth, small metal bars, called guide bars, had been welded to the rake bar by the manufacturer.

The branches are picked up by the rake teeth, and forced along them by the forward motion of the machine, until they are met by a revolving drum containing teeth which protrude about two inches from the drum, and which pass on either side of the butt end of each rake tooth. These teeth on the drum carry the branches upward and against stationary teeth, thus shredding them. The drum is operated by a motor on the machine.

It is necessary, when moving the machine from one field to another, to raise the projecting ends of the rake teeth by moving a hand lever which operates the rake bar. This lever is located above and in front of the rake teeth.

The managing agent of the defendant had shown plaintiff how to operate the machine, including the rake-bar lever to raise the rake teeth. He operated this lever in plaintiff's presence, while the drum was revolving, and had told plaintiff to allow the drum to revolve, after the forward motion of the machine was stopped, to clear out branches so they would not be dropped on the road when the machine was moved to another orchard.

Intending to move the equipment to another orchard, and without waiting for the drum to stop, plaintiff stepped in front of the machine to operate the rake-bar lever to raise the rake teeth. While he was moving the lever, one of the rake teeth was thrown forward from the machine and struck him on his right leg, causing the injury of which he complains.

The guide bar, on one side of the rake tooth which struck plaintiff, had been missing since 1948. The absence of this bar permitted the rake tooth to pivot and be hit by one or more of the teeth on the revolving drum, which expelled it forward against plaintiff's leg. The front bolt in the expelled rake tooth was sheared, the rear bolt having fallen out previously without its absence being noticed. It was not uncommon for these bolts to fall out or for the rake teeth to be dropped from the machine. Plaintiff knew this, as he had replaced them many times. He examined the machine every day, and was familiar with it, but did not know and had not been warned of any danger from a rake tooth being expelled from the front of the machine.

The sufficiency of these facts to justify recovery by the plaintiff was challenged by the defendant upon three grounds: (1) that it was not shown that defendant was negligent; (2) that the contributory negligence of plaintiff was established, and (3) that plaintiff assumed the risk of injury.

All are attacked by plaintiff (appellant), and we are obliged to consider each of these contentions because, although the ruling of ...