Jones v. Jones

• Decision Date: 07 December 1964
• Docket Number: No. 24157,24157
• Citation: 384 S.W.2d 807
• Parties: Harold JONES, Respondent, v. Billy JONES, Appellant.
• Court: Missouri Court of Appeals

Page 807

384 S.W.2d 807

Harold JONES, Respondent, v. Billy JONES, Appellant.

No. 24157.

Kansas City Court of Appeals, Missouri.

Dec. 7, 1964.

J. Door Ewing, Joe Beavers, Ewing and Beavers, Maryville, for appellant.

Robert L. Ross, Albany, for respondent.

MAUGHMER, Commissioner.

Plaintiff had a verdict and judgment for $15,000 as damages for injuries to his right hand sustained while pulling on the belt of defendant's combine, trying thereby to assist in starting the motor. Plaintiff, Harold Jones, on December 1, 1962, when the accident occurred, was 64 years of age and the father of defendant Billy Jones. His principal occupation for 16 years had been managing and operating a small town produce house. However, he lived on a farm and prior to his produce house venture had been a farmer, but had mostly used horse-drawn machinery in his farming operations although he owned a tractor, disk and plow. He had never owned a combine or other types of farm machinery which were equipped with belts and pulleys.

Defendant was a farmer, owned two combines and in addition to harvesting his own crops, did custom combining. The machine on which plaintiff sustained his injuries was a 1958 model self-propelled John Deere combine. Defendant had left it in plaintiff's yard and came by about 7:00 a. m. on the day in question to do some custom work (not for plaintiff). The machine was equipped with a self-starter on a battery. December first was described as a cold morning and the motor failed to start in response to defendant's efforts with the starter. Defendant's father--the plaintiff--was just ready to leave for his produce house. Defendant asked him to 'pull down on the belt and get it loose'. From his location at the starter, defendant could see neither plaintiff nor the belt. If the belt were pulled and moved it would lessen the load on the starter. Plaintiff on a few occasions previously had used this method to aid in starting the combine. When the implement came from the factory it was equipped with a metal shield over the belt and pulley--a safety device designed to prevent a hand, arm or clothing from becoming entangled. Defendant, a few years previously in an effort to facilitate making some repairs, had removed this shield and had never replaced it. Plaintiff testified he never knew the shield had originally been there or that it had been removed.

Plaintiff pulled on the belt as directed and defendant pressed on the starting button. Plaintiff's right hand became entangled in the pulley under the belt. He yelled 'stop'. His wife and son got his hand out, took him to the doctor and then to the hospital. The testimony was that his little finger was amputated, that except for the thumb, he has no use of the hand, it gets cold and is painful all the time.

Appellant asserts first that his motion for directed verdict at the close of all the evidence should have been sustained because 'the evidence conclusively shows plaintiff was guilty of contributory negligence and assumed the risk of his injury, as a matter of law'. It apparently is conceded that plaintiff's evidence amounted to a submissible case unless plaintiff was guilty of contributory negligence as a matter of law. Defendant invites our attention to Chisenall v. Thompson, 363 Mo. 538, 252 S.W.2d 335. In that opinion the Supreme Court quotes (p. 337) with approval the following from 65 C.J.S. Negligence Sec. 120, page 722:

"The duty to exercise ordinary care to avoid injury includes the duty to exercise ordinary care to observe and appreciate danger or threatened danger. A person is required to make reasonable use of his faculties of sight, hearing, and intelligence to discover dangers and conditions of danger to which he is or might become exposed, and one injured as a result of his failure to use his faculties to observe and discover a danger which would have been observed and discovered by an ordinarily prudent person is guilty of contributory negligence.'

The court reversed a judgment for Chisenall who had injured his hand cleaning stalks from the rollers of a corn picker. That case is quite different from ours. Chisenall was defendant's farmhand, had operated the corn picker for about eight days, and was familiar with it. The master had placed the work entirely in charge of the servant and permitted him to perform it in his own way. He had not given any specific directions as to the method to be used in cleaning the picker. In our case we have no relation of master and servant. Plaintiff was not particularly familiar with the machine and he had been specifically directed to 'pull on the belt'. In this latter respect our case is more akin to Beckett v. Kiepe, Mo.App., 369 S.W.2d 258, where defendant, employed to construct plaintiff's barn, directed plaintiff to 'slip under a pole and ride it down'. The pole fell and plaintiff was injured. We quote from the opinion of this court (page 262) affirming a judgment for plaintiff:

'In all of the cases cited by defendant in support of his argument that plaintiff was contributorily negligent as a matter of law there was no 'request or invitation' by the defendant to do the act nor was there any 'reassurance by the defendant.'

'The courts have repeatedly held that under factual situations, somewhat similar in that the hazard and defect is more or less obvious to the plaintiff, the plaintiff is not contributorily negligent as a matter of law, but that it was a jury question. As said in the case of Hahn v. Flat River Ice & Cold Storage Co., 285 S.W.2d 539 (Mo.Sup.): 'Where one relies and acts upon the directions and assurances given him by another as to the proper manner of performing a task or operation, in relation to which the latter owes him some duty as to his safety, it is ordinarily a question for the jury to resolve whether the directions and assurances given were improper, and such as to amount to negligence in the particular circumstances, and also whether the reliance upon the following out of them in the situation involved constituted contributory negligence.''

Appellant invites our attention to Crandall v. McGilvray, Mo., 270 S.W.2d 793, as being controlling here. In that case plaintiff was a farmhand employed by defendant. He was familiar with the corn picker and knew it was dangerous to remove stalks from the rollers with the power on, because when the obstruction was removed the rollers would start turning. Nevertheless, he did remove the obstruction while the power was on, caught his hand in the rollers and was injured. A directed verdict for defendant was upheld, the court ruling plaintiff guilty of contributory negligence as a matter of law. The opinion also states that plaintiff was not entitled to a submission on failure to warn. We quote on this subject from the syllabus:

'In action against employer for injuries sustained by mature farm hand experienced in operation of powr machinery when fingers of right hand were caught in husking rollers of mechanical corn picker when he attempted to remove obstruction which had stopped operation of rollers without first disengaging power take-off, evidence failed to make a case for jury on...