Keeney v. Callow
| Decision Date | 10 July 1961 |
| Docket Number | No. 1,No. 48530,48530,1 |
| Citation | 349 S.W.2d 75 |
| Parties | Grant KEENEY, Administrator or the Estate of Lloyd Keeney, Deceased, Plaintiff-Appellant, v. John A. CALLOW, Defendant-Respondent |
| Court | Missouri Supreme Court |
Newhart & Zahnd, John W. Newhart, L. Glen Zahnd, Savannah, for appellant.
Sprague, Wilcox & Houts, St. Joseph, for respondent.
HOUSER, Commissioner.
This is an action for $25,000 damages for the wrongful death of Lloyd Keeney, who was killed on March 17, 1959 when his clothes became entangled in the revolving drive shaft of a grain mill he was operating on the farm belonging to his employer, the defendant. At the close of all the evidence the trial judge directed a verdict for the defendant on the ground that plaintiff-administrator failed to prove that defendant had failed to furnish deceased with a protective shield or guard to cover the shaft. Keeney's administrator has appealed from the judgment entered upon the verdict.
The petition charged negligent failure to provide and maintain reasonably safe machinery--setting Lloyd Keeney to work using a grain mill 'without providing for said grain mill the proper protective shield for the drive shaft,' and failure to warn him 'as to the defect and danger of said grain mill.' The answer raised the issue of contributory negligence, alleging that Keeney, familiar with the operation, maintenance and service of farm machinery and particularly this machine, failed to use safety devices available and provided for his protection; that he knew where the safety devices were located and was familiar with their use, but failed to exercise ordinary care for his own safety.
Appellant makes three points, one of which is that the court erred in directing a verdict for defendant; that the question whether defendant furnished deceased with a cover for the drive shaft was a question of fact for the jury, which could not be declared as a matter of law. In determining this question we state the evidence in the light most favorable to plaintiff, giving him the benefit of all favorable inferences arising therefrom and disregarding defendant's evidence unless it aids the plaintiff's case. Daniels v. Smith, Mo.Sup., 323 S.W.2d 705, 706.
Lloyd Keeney, single, living at home with his parents, was 30 years old at the time of his death. He had an eighth grade education. He had no physical defects. He had engaged in general farm work from the age of 13. At first he worked with 'mostly horses,' later using John Deere tractors, doing plowing, but not operating such machines as combines or corn pickers in his previous employments. He went to work on defendant's farm, under defendant's direct supervision, about two years before his death, doing 'mostly general farm work.' Several months later defendant took employment in Maryville. Thereafter, although no longer active in any work on the farm, defendant was the overseer. He would confer with Keeney from time to time, ordinarily on weekends, outlining what needed to be done. Keeney, in the interim, 'was his own boss.' Defendant left it to Keeney to determine 'how he was going to get that work done' and when to do the work. Keeney was paid a straight salary of $7 a day or $42 a week, and occasinal small additional sums.
One of Keeney's duties was to grind feed for defendant's cattle. Defendant owned a portable John Deere 220X Grain Mill, powered by a farm tractor. A power take-off shaft at the rear of the tractor connected to the end of the mill drive shaft. Power from the tractor was transmitted by the mill drive shaft through the slip clutch and universal joint back to the power box of the mill, in which gears turned constantly, activating belts and burrs which turned and ground the material. The drive shaft, 67 inches in length, approximately level when hooked up to the tractor, was about 23 inches above ground level at the universal joint. A protruding alemite fitting, and a set screw which stuck out at least 3/4 of an inch, open and obvious to anyone hooking up the mill, are attached to the drive shaft. One hooking up the mill to the tractor 'had a little job on his hands.' The drawbar of the portable mill (like the tongue on a wagon) had to be maneuvered into position, 'lined up just right,' and then securely connected to the tractor, so that the mill would not slip off when in operation. Then the drive shaft had to be connected to the tractor power take-off. When the tractor motor was running and the power take-off engaged, the drive shaft, slip clutch and spring, alemite fitting, set screw and universal joint all spinned or rotated as one unit, at approximately 540 r. p. m. The rapid speed and whirling of the shaft, etc. was visible to the eye when the mill was operating and the shield not attached. The mill, purchased by defendant prior to Keeney's employment, came equipped with a semicircular, troughlike, shield or guard which, when attached in an inverted position, covered the entire length of the drive shaft, set screw, etc. That shield, used for a time after the mill was first purchased but no longer in use at the time Lloyd Keeney came to work for defendant, was 'at the place,' 'around there some place,' but its location on March 17, 1959 was not definitely known or established. There was another shield 'available on the Callow farm' and 'present' on that day. It was attached to the corn picker on the day of the fatality. The corn picker shield was interchangeable and could be used on the grain mill. (The day after the fatality defendant's brother-in-law, Eugene Lark, took the shield off the corn picker, put it on the grain mill and finished the job of grinding Keeney had started.) While plaintiff's evidence thus developed the fact that there were two shields on the farm available for use and that neither shield was utilized by Lloyd Keeney on March 17, 1959 when the grain mill and tractor were attached, there is no evidence for our consideration on this review that Keeney knew of the existence of the original shield that came with the grain mill or knew that the corn picker shield could be or should be used on the mill, or that either shield had ever been used as a safety device on the grain mill at any time during the period of Keeney's employment.
On the day in question Mrs. John Callow, defendant's wife, saw Keeney when he appeared for work, early in the morning, wearing blue jeans and two short, fitted western-type denim jackets, a new one over an old one, both over a plaid shirt. He was apparently in good health. There was some snow and rain. The ground was wet. A few minutes later Mrs. Callow heard a rumbling noise, looked out the window, and saw that something was wrong. She went to the mill, found Keeney's body 'laying over the drawbar,'--over the unprotected drive shaft of the grain mill--with the toes of his shoes 'touching the ground just like he had fell over or been drawn into it.' No shield was attached to the mill or covering the drive shaft at the time of the fatality. Keeney's jacket, shirt and undershirt were wound around the drive shaft. The corner of his jacket had caught on the set screw and wrapped around the drive shaft, and some of his clothing was wrapped around the slip clutch and caught up in the jaws or teeth of the slip clutch. Blood was found on a sharp bar near the tractor end of the drive shaft. Apparently Keeney had been violently flipped over, striking his head on the bar. The coroner found that death was caused primarily be a blow on the left temple and secondarily be strangulation.
The theory of plaintiff's action is that defendant breached his duty to provide his employee with reasonably safe machinery, by setting him to work using a grain mill without providing for the mill the proper protective shield for the drive shaft.
It was the common-law duty of defendant toward his employee using machinery in the operation of a farm to use ordinary care to provide him with reasonably safe appliances, machinery and tools with which to work. Adams v. Thayer, 222 Mo.App. 907, 6 S.W.2d 630; Spears v. Schantz, 241 Mo.App. 879, 246 S.W.2d 399; Annotation: Servant--Injury By Farm Machinery, 67 A.L.R.2d 1130. A jury could find that this open drive shaft, revolving at 540 r. p. m. at knee height without any protective shield, was not reasonably safe for one working in close proximity thereto. As indicated there was evidence that there were two shields on the farm at the time the mill was put in operation, at least one of which was 'available' in the sense that it was on the corn picker and could have been removed from the picker and attached to the mill. The question is whether we may say, as a matter of law, that defendant complied with his common-law duty by providing a shield in the manner in which the evidence most favorable to plaintiff shows a shield was provided.
The common-law duty to provide a shield did not place upon defendant the continuing duty 'to have the cover on the machine at all times,' as appellant contends. A requirement that defendant cause the shield to be permanently fixed to the mill at all times would be impractical because the shield had to be removed each time the tractor-mill set-up was assembled or disassembled, and each time the mechanism was lubricated. Defendant, who was working in town, could not be present on the farm at all times, and the employee was expected to use his own judgment in deciding when to use the mill. Nor would it be realistic or reasonable to require that defendant be present to personally hand the shield to the employee for use each time the mill was attached to the tractor.
In such circumstances, where the safety appliance must be attached anew each time the machine is put to use and the employer cannot be personally present to see this done, the duty to 'provide' a shield reasonably must be held to...
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