Johnson v. Kinney

• Citation: 7 N.W.2d 188,232 Iowa 1016
• Decision Date: 15 December 1942
• Docket Number: No. 46024.,46024.
• Parties: JOHNSON v. KINNEY et ux.
• Court: United States State Supreme Court of Iowa

232 Iowa 1016
7 N.W.2d 188

JOHNSON
v.
KINNEY et ux.

No. 46024.

Supreme Court of Iowa.

Dec. 15, 1942.

Appeal from District Court, Cerro Gordo County; T. A. Beardmore, Judge.

Law action by a farm hand against his employers for injury caused by an unguarded revolving shaft on a farm tractor. Verdict and judgment for plaintiff. Defendants appeal.

Affirmed.

[7 N.W.2d 190]

Gibson, Stewart & Garrett, of Des Moines, and Fitzpatrick & Barlow, and L. R. Boomhower, all of Mason City, for appellants.

Senneff & Duncan and Morgan J. McEnaney, all of Mason City, for appellee.

GARFIELD, Justice.

Defendants, husband and wife, own and operate a farm of over 3,000 acres in Cerro Gordo County. J. E. Risden was the farm manager with general supervision of the work. Plaintiff, a farm hand then 21 or 22, commenced working for defendants about March 1, 1940. On March 25, 1940, a circular saw was attached by means of a belt to an Oliver farm tractor for the purpose of sawing wood. Gilbertson and Reindl, two other employees, were engaged in the sawing. Risden, the manager, directed plaintiff to assist them and to report to Gilbertson who would tell him what to do. Plaintiff went to Gilbertson, who directed him to bring the wood from the pile to the saw. Reindl had put the tractor and saw in place for the work, set the belt, started the power and adjusted the speed of the tractor engine and saw. This was all done and Gilbertson and Reindl had started sawing when plaintiff arrived.

After 2 1/2 to 3 hours they stopped sawing and Gilbertson said that would be all. It is plaintiff's claim and he testified that Gilbertson then directed him to shut off the power on the tractor; that the other two men started filling the trailer with wood; that plaintiff walked around to the back of the tractor, shut off the power and as he was pulling his hand back his mitten caught in the power take-off shaft which was still revolving very fast, injuring his right hand and arm.

The power take-off shaft protruded from the rear of the tractor 44 inches above the ground and 12 inches below the seat. The exposed part was 3 1/2 inches long and 1 3/8 inches in diameter with 6 notches or grooves in it. The shaft is for the purpose of running power machinery. When a cornpicker, grain binder or mower is hooked on to the shaft, motive power is transferred from the tractor engine to the machinery. On the day in question the shaft was not in use. Power was transmitted to the saw by means of a belt placed over a pulley wheel, about 18 inches in diameter, to the front and on the right side of the tractor.

It is plaintiff's claim that defendants were negligent in not having a guard or shield over the exposed shaft with which he came in contact. There is testimony that there is available from the Oliver tractor company a shield or guard, shaped somewhat like a deep cup or an auto hub cap, to cover the shaft. Plaintiff testified that after he was injured he saw such a shield in the tool shop on defendants' farm and that it would fit over the exposed part of the shaft. There is nothing to dispute this testimony. Both Reindl and Gilbertson testified they never saw the shaft covered by a shield. There is no testimony that defendants kept the shaft covered at any time before the day of plaintiff's injury. The tractor was purchased in 1937 or 1938 from the Oliver establishment in Mason City. A service man for the company testified that the tractors sold at Mason City do not come equipped with the power take-off shaft but that they must be bought separately.

Plaintiff testified without contradiction that he had never used an Oliver tractor, that he had driven another make of tractor in the field and used it with a belt pulley before he worked for defendants and that he had not helped saw wood for defendants before the day in question. On March 25 the tractor was headed west, the power take-off shaft protruding to the east. The saw was in front and west of the tractor some 15 to 20 feet. The pulley belt extended to the saw from the north or right side of the tractor. The pile of uncut wood was about 20 feet north of the saw. The trailer near which the cut wood was piled was 6 or 8 feet south of the saw. During the entire work of sawing, plaintiff was carrying the uncut wood from the pile to the saw which Gilbertson was feeding. Reindl was taking the cut wood from the saw to the pile near the trailer. There is no testimony that plaintiff went to the rear of the tractor at any time before he claims to have attempted, pursuant to Gilbertson's direction, to shut off the power.

The jury returned a verdict for plaintiff of $1,312. From the judgment entered thereon and the overruling of their motion

[7 N.W.2d 191]

for new trial and exceptions to instructions, defendants have appealed.

I. Appellants first complain that the court failed to submit their pleaded defense of assumption of risk. The sole ground of negligence alleged by appellee or submitted to the jury was failure to provide reasonably safe machinery in negligently failing to furnish a guard for the shaft in question. Unless appellants were negligent in this respect, appellee was not entitled to recover. The court so instructed. If appellants were negligent in the respect charged, appellee did not assume the risk therefrom by continuing in the work unless in the usual course of his employment it was his duty to remedy the defect, and even if such were his duty, he assumed no risk therefrom unless the danger was imminent so that a reasonably prudent person would not continue in the work. This is the plain provision of section 1495, Code, 1939, as construed in Correll v. Williams, etc., Co., 173 Iowa 571, 155 N.W. 982, Ann. Cas.1918A, 117;Bell v. Brown, 214 Iowa 370, 239 N.W. 785;Lang v. Hedrick, 229 Iowa 766, 295 N.W. 107, 111.

Appellants do not contend that appellee in the ordinary course of his employment was under any duty to remedy the alleged defect in the tractor. It conclusively appears he was under no such duty. The court therefore properly withdrew from the jury the defense of assumption of risk.

In addition to the fact that appellee was under no duty to remedy the alleged defect, we doubt if the evidence would warrant a finding that the danger from the unguarded shaft was so imminent that a reasonably prudent person would not have continued the work. Assumption of risk was an affirmative defense. The burden of proof on this issue rested upon appellants. There is no evidence that appellee had any previous experience with this or a similar tractor or that he knew of the presence of this unguarded part. His work during the sawing operations did not take him where he could see this shaft. There is no evidence he did see it before coming in contact with it. Since appellee was under no duty to repair, however, we need not determine whether there was imminent danger from the alleged defective machinery.

II. Appellants' answer alleged that appellee was guilty of contributory negligence which bars recovery or is in mitigation of damages. Appellee's petition did not allege freedom from contributory negligence. The court instructed the jury to consider this defense only in mitigation of damages. This was proper. Section 11210, Code 1939; Oestereich v. Leslie, 212 Iowa 105, 113, 114, and cases cited, 234 N.W. 229; Morse v. Century Cab Co., 230 Iowa 443, 448, 297 N.W. 877, 880, 134 A.L.R. 635;Band v. Reinke, 230 Iowa 515, 517, 518, 298 N.W. 865, 867.

Appellants assert, however, that the instructions do not define contributory negligence. The court properly defined negligence and ordinary care and told the jury, in effect, that contributory negligence was negligence on plaintiff's part which contributed to his injury, and that plaintiff was under the duty to exercise reasonable care under the facts and circumstances shown in evidence. The instruction on contributory negligence was patterned largely after the one approved in Oestereich v. Leslie, 212 Iowa 105, 113, 234 N.W. 229. At least in the absence of a request for a more complete definition, the instructions sufficiently defined contributory negligence. Becvar v. Batesole, 218 Iowa 858, 860, 256 N.W. 297;Winter v. Davis, 217 Iowa 424, 433, 251 N.W. 770;Fisher v. Cedar Rapids & M. C. R. Co., 177 Iowa 406, 420, 157 N.W. 860.

Although appellants apparently concede that the case properly falls within Code, section 11210, providing that contributory negligence is available as a defense in certain cases only in mitigation of damages, it is argued that the jury might have found that appellee was acting outside the scope of his employment at the time he was injured, in which event contributory negligence would bar recovery, and that the court should have so instructed. However, the jury was told in effect that before plaintiff could recover he must prove he was acting within the scope of his employment by carrying out directions claimed to have been given him by Gilbertson to shut off the power of the tractor, and that if he did not so prove he could not recover. The verdict was necessarily a finding that appellee acted within the scope of his authority. Under the court's instructions, he was not entitled to recover if injured while acting beyond the scope of his employment, regardless of whether he was...