Hunsberger v. Wyman

• Decision Date: 23 June 1965
• Docket Number: No. 2,No. 19905,19905,2
• Citation: 208 N.E.2d 478
• Parties: Kenneth HUNSBERGER, Appellant, v. Wayne WYMAN, Appellee
• Court: Indiana Appellate Court

Page 478

208 N.E.2d 478

Kenneth HUNSBERGER, Appellant, v. Wayne WYMAN, Appellee.

No. 19905.

Appellate Court of Indiana, Division No. 2.

June 23, 1965.

Dissenting Opinion June 29, 1965.

Rehearing Denied Aug. 11, 1965.

Opinion Superseded 216 N.E.2d 345.

Bruce C. Hammerschmidt, South Bend, Willard H. Chester, Jr., Elkhart, Hammer-schmidt & Bonewitz, South Bend, of counsel, for appellant.

Philip E. Bryon, Jr., Elkhart, for appellee.

HUNTER, Judge.

This is an action brought by appellant, Hunsberger, against appellee, Wyman, to recover damages for personal injuries alleged to have been sustained by appellant as a result of a milk truck bed falling on appellant while in the employ of the appellee. The trial court directed the jury to return a verdict for defendant-appellee at the close of plaintiff-appellant's evidence and judgment was rendered thereon.

Appellant assigns the error that the court erred in overruling his motion for a new trial. Under this assignment, appellant urges that the trial court erred in granting defendant's motion for a directed verdict.

Appellant essentially alleged facts of negligence on the part of the master, appellee, in proximately causing personal injury to the servant, appellant, in negligently allowing a truck bed frame to fall upon him while he was working for the appellee under the latter's directions. Both parties to this appeal argue under the law inherent to the Master-Servant relationship. Appellant urges that there were facts which the evidence tended to prove that the appellee was liable as a master, for appellant's injuries, as a servant.

The rule which the trial court must follow when considering the evidence pertinent to a motion for a directed verdict, thus withdrawing a case from the jury, is as follows:

'The court must accept as true all facts which the evidence tends to prove and draw all inferences which the jury might reasonably draw against the party requesting the instruction, and, in case of conflict, the court may consider that evidence only which is favorable to the party against whom the instruction is requested.' Tuttle v. Reid (1964), Ind.App., 198 N.E.2d 610, 613, citing Clouse v. Peden (1962), 243 Ind. 390, 186 N.E.2d 1 and Leader v. Bowley (1961), 132 Ind.App. 528, 178 N.E.2d 445. Also see Coleman v. Mitnick (1964) Ind.App., 202 N.E.2d 577, 578 and Bradford v. Chism (1963), 134 Ind.App. 501, 506, 186 N.E.2d 432.

Since it is our duty to determine if the trial court erred in directing the verdict against appellant, we will set forth the facts most favorable to the appellant.

Appellant, Hunsberger, a neighboring farmer, was hired by appellee, Wyman, to come to the latter's farm to cut a milk truck body away from a frame with Hunsberger's acetylene torch. Hunsberger had never seen the truck body before. It was located in a muddy barnyard which was in such a condition that Wyman had to use his tractor to pull the small cart that held the torch equipment to the site. The sloppy condition of the soil was caused by a recent rain and cattle tramping the ground. Upon reaching the site, Wyman hitched his tractor to the upright body and turned it over on its side. He then instructed Hunsberger on 'how he wanted it cut flush, so it would make a nice hayrack.' Then, with Wyman's assistance and under his direction, Hunsberger proceeded to cut the top and both ends of the frame. After this cutting, Wyman took his tractor, with Hunsberger's assistance and turned the body on its other side so that such other side could be cut. Hunsberger then finished the cutting. At this time, the body itself was perpendicular to the ground, and the bed and frame were at an angle away from the body. That is, the bottom of the frame was yet four (4) feet from the bottom of the body, while the tops of the frame and body were together. The parties realized that the bed and frame were not completely severed and they hooked a chain and tractor to the truck bed in an attempt to disconnect the two to no avail. Both parties examined the apparatus to see where it was yet fastened and they found the connection was at the top center. Hunsberger asked Wyman for a hammer and chisel to disconnect the body which Wyman said he didn't have. Hunsberger then picked up an ax which was the only tool nearby. He then came back to a position near the center of the bed and hit the top center of the bed with a small blow from the ax. Upon impact, the bed loosened and fell away from its apparent leaning angle, falling on Hunsberger. Hunsberger attempted to jump away, but slipped in the mud and was severely injured when the bed fell upon him. Before and during the latter operation of striking the bed with the ax, Wyman neither hooked his tractor to the bed nor did he back it up to such to prevent if from falling. He remained seated on the tractor and watched Hunsberger strike the bed with the ax which was the only available tool that could be used for this purpose.

In examining the rules of a master's duties toward his servant, there exist the following well established principles: It is the duty of the master to use ordinary care in providing a safe place to work and reasonably fit appliances for his servant. O'Neal v. Chicago and Indiana Coal Railway Company (1892), 132 Ind. 110, 31 N.E. 669. Also see Big Creek Stone Co. v. Wolf (1894), 138 Ind. 496, 38 N.E. 52 and Hoosier Stone Co. v. McCain, Administrator (1892), 133 Ind. 231, 31 N.E. 956. The duty to exercise ordinary care to keep the place of work in a reasonably safe condition is a continuing one. Haskell & Barker Car Co. v. Przezdziankowski (1907), 170 Ind. 1, 83 N.E. 626, 14 L.R.A.,N.S., 972.

An employer should also exercise reasonable care in protecting an employee where the employer knows by ordinary care or should know a particular danger exists. Hoosier Stone Company v. McCain, Administrator, supra; Nall, Administratrix, v Louisville, New Albany and Chicago R'y. Co. (1891), 129 Ind. 260, 271, 28 N.E. 183, 611.

It is also recognized that an employer is not an insurer of the employee's safety, but rather the duty imposed upon him is one of ordinary care in providing a safe place to work and proper tools. Lehigh, etc., Cement Co. v. Bass (1913), 180 Ind. 538, 551, 103 N.E. 483.

Where the master fails to discharge one of his duties and injury proximately results therefrom, the master is liable. Columbia Creosoting Co. v. Beard (1912), 52 Ind.App. 260, 99 N.E. 823.

Assumption of risk of the employee is an available defense to the employer in cases where the employee is attempting to impute liability to said employer. Piepho v. Gesse (1939), 106 Ind.App. 450, 18 N.E.2d 468. It is well settled that '* * * the employe assumes all risks incident to the services in which he is engaged * * *.' Columbia Creosoting Co. v. Beard (1909), 44 Ind.App. 310, 314, 89 N.E. 321, 323. Before an employee can be said to have assumed a risk which may not be necessarily a common one incident to the employment, the employee must know or should know that the danger exists. Brazil Block Coal Company v. Hoodlet (1891), 129 Ind. 327, 331, 27 N.E. 741; Columbia Creosoting Co. v. Beard, supra.

Contributory negligence of the employee is also a defense which is available to the employer in cases where the employee attempts to impute liability to the employer for injuries sustained. W. McMillen & Son v. Hall (1915), 59 Ind.App. 545, 109 N.E. 424.

In regard to the application of these basic rules surrounding the employer's liability for injuries sustained by the employee in the course of his employment, one axiom pervades throughtout. As stated by the Supreme Court of Indiana, in Davis v. Mercer Lumber Co. (1904), 164 Ind. 413, 424, 73 N.E. 899, 903, quoting Justice Strong of the Supreme Court of the United States:

'The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science, or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it.'

In applying the familiar above-quoted rule on directed verdicts in a master-servant case involving negligence, this court recently stated:

'Negligence is ordinarily a matter for the jury. When facts are alleged and proved indicating that a relationship exists between the plaintiff and the defendant which imposes a legal duty upon the defendant to exercise care toward the plaintiff, and when the evidence presented by the plaintiff is sufficient to warrant reasonable minds to infer a violation of this duty by the defendant by failing to exercise ordinary care in a particular that has been alleged in the complaint, the court would properly refuse to direct a verdict for the defendant.' Leader v. Bowley (1961), 132 Ind.App. 528, 537-538, 178 N.E.2d 445, 449, citing Tabor v. Continental Baking Co. (1941), 110 Ind.App. 633, 38 N.E.2d 257.

We cannot unequivocally conclude as a matter of law that no liability exists in this case and that reasonable minds could not infer liability herein and we must therefore state that the trial court committed error in preemptorily instructing the jury to direct the verdict against the plaintiff. There is evidence from which the jury could infer that Wyman did not furnish Hunsberger a safe place to work, i. e., a muddy field. There is evidence from which the jury could conclude that Wyman did not furnish the proper tools i. e., the only tool available to disconnect the body from the bed was an ax. There is evidence from which a jury could decide that Wyman omitted to do an act which could have prevented the bed from falling on Hunsberger, i. e., by backing the tractor against the bed or by shoring it up. Whether these acts or omissions constitute negligence and whether one or more of these acts or omissions are the proximate cause of the injury are questions for the jury because the existence or non-existence of all of these elements * * * depends chiefly upon the facts in each case. ...