Knudtson v. Swenson, 52581

CourtUnited States State Supreme Court of Iowa
Citation155 N.W.2d 756,261 Iowa 929
PartiesRussell M. KNUDTSON, Appellee, v. Gordon SWENSON, Melvin Juveland and Harlan Evenson, Appellants.
Docket NumberNo. 52581,52581
Decision Date09 January 1968

Page 756

155 N.W.2d 756
261 Iowa 929
Russell M. KNUDTSON, Appellee,
Gordon SWENSON, Melvin Juveland and Harlan Evenson, Appellants.
No. 52581.
Supreme Court of Iowa.
Jan. 9, 1968.
Rehearing Denied March 5, 1968.

[261 Iowa 931]

Page 757

Floyd E. Ensign, Northwood, for Gordon Swenson, appellant.

Weible & Stipp, Forest City, for Melvin Juveland, appellant.

Linnan, Lynch & Straub, Algona, for Harlan Evenson, appellant.

Westfall, Laird, Burington, Bovard & Heiny, Mason City, and Eugene Sarno, Lake Mills, for appellee.

SNELL, Justice.

This is a farm accident case. It presents a vivid illustration in support of legislation in the field of workmen's compensation for farm labor. That is a problem for the legislature. We have no authority to legislate. Until we have such legislation there must be more than evidence of an on-the-job injury to support recovery of damages. In this case a sympathetic trial judge made an award to plaintiff. If supported by substantial evidence the findings are binding on us. However, we fail to find factual support, i.e. evidence, for his findings as to actionable negligence, proximate cause and freedom from contributory negligence. More than usual quotation from the record seems necessary.

Plaintiff herein was injured on September 19, 1964 in a silo filling operation. He lost a hand in moving machinery. Plaintiff was an employee of defendant, Gordon Swenson.

Defendant, Gordon Swenson, was the owner and operator of silo filling equipment. He did custom work for farmers. He furnished a tractor and field cutter, three unloading (chop) wagons, the silage blower and tractor, and the labor of two men. He operated the field cutter, and his employee, plaintiff herein, operated the blower at the silo and the machinery unloading the silage from the wagons to the blower. Swenson was an independent contractor and was paid $10 or $11 a foot for filling the silo.

[261 Iowa 932] Defendant, Melvin Juveland, was a farmer and had a silo holding about 70 tons. By oral contract he employed Swenson to fill his silo. Juveland was to furnish three men and three tractors to pull the wagons. His men were his two sons and Harlan Evenson, a neighbor.

Harlan Evenson was a farmer who exchanged work with Juveland. He was helping on an exchange of work basis with no cash pay involved. He operated one of the tractors and hauled wagons from the field to the blower. At least part of the time he helped plaintiff in the unloading of the wagons, i.e. the wagons he brought in. The wagons furnished by defendant Swenson included two John Deere Chuck Wagons Model 110. One of the chuck wagons was being unloaded when plaintiff was injured.

The trial court in Findings of Fact described the operation of the chuck wagon as follows:

'The John Deere Model 110 Chuck Wagon owned by the Defendant Swenson * * * was a wagon among other things designed for hauling cut silage from the field to the silo for unloading into a blower and eventually the silage would be blown into the silo; that said wagon is equipped with an apron belt on the bottom part of the body of the wagon box for moving the silage forward; that on the front end of the box there are three sets of beaters which

Page 758

pull the silage from the box to the conveyer at the front end of the box; that there are about 48 spokes on each of the three beaters and the beaters are about three inches in length and one-half inch in diameter; that as the apron at the bottom of the box moves forward the silage is moved forward toward the beaters which break up the silage so that it becomes loose and goes into the conveyer on the front of the wagon which in turn conveys the silage from the wagon into the blower which eventually elevates the silage into the silo. (Exhibits D--A and D--D show the type of wagon.)

(We reproduce these exhibits from the record.)


Exhibit DA

Page 759


Exhibit DD

[261 Iowa 935] '* * * the mechanism of the conveyer on the front end of the wagon and particularly the beaters when in operation is a very dangerous piece of equipment as evidenced by the warning sign on the front of the machine. (See Exhibits D--A and 1 and 3.)

Page 760

(Exhibit 1 is reproduced from the record. Exhibit 3 is an operator's manual from which we reproduce pictures of the wagon.)


Defendants' Exhibit 1

Page 761



John Deere 110 'Chuck Wagon Mixer-Feeder and 963 Wagon



For handling forage crops and other bulky material, install the extension sideboards.

[261 Iowa 936] 'The Court finds from the evidence that a portion of the shield or guard covering the area where the silage comes out of the hopper or that portion which protects the

Page 762

area when the beaters are in operation has been cut out or enlarged by the Defendant Swenson. (See ragged edge as shown in exhibit D--B and Exhibit D--C.) (Reproduced from the record.)


Exhibit DB

Page 763


Exhibit DC

[261 Iowa 938] The Court finds that the enlarging of the opening by the Defendant Swenson increased the hazard to the operator of the chuck wagon and in this case to the plaintiff, Russell M. Knudtson.

'The Court finds from the evidence that the Defendant Swenson had made a fork like rake for the purpose of raking off the silage from the top of the wagon thus making the entry of the silage into the hopper on the conveyer in the front of the wagon in a uniform manner.'

The court's findings as to the cutting out of the shield are without support in the record. We quote from plaintiff's testimony:

[261 Iowa 939] 'I was familiar with the chuck wagon known as 110; I knew how to operate it; I learned this from observation and watching it operate; I knew it was equipped with beaters. I know that when the beaters are in operation they go at a high rate of speed; that in connection with the accident load they were not going rapidly or slowly and were going at about the same speed on all of the loads. I knew that the beaters generated a great deal of power; I knew that it would be dangerous to touch them with any part of my hand or body, and I found out that it would be dangerous to touch these beaters and I knew this before the accident happened.

Page 764

'Q. Now was there anything mechanically wrong with the wagon which carried the accident load? A. Just the cut out.

'In connection with the cut out of the wagon as shown in Exhibit DB, if I faced the cut out portion the part which was cut out was at the upper left-hand part of the opening. The cutting angled up to the upper left hand corner of the opening. The tooth on the bottom beater is visible at the lower right-hand corner and the cutting is away from the place where the tooth is shown in Exhibit DB as we are viewing it here.

'The wagon carrying the accident load was in the same condition when I first came to work for Swenson as it was when I was injured.

'Q. And you have no knowledge how the cutting was accomplished or who cut it? A. No. I don't.

'Q. You don't claim Mr. Swenson did it? A. No.

'In the silo-filling operations of 1963 and 1964 the blower clogged twice in 1963; it would take a large chunk of silage to clog the blower; when it logs up it sometimes kills the tractor motor; when the blower clogs up I disengage the power take-off by getting on the tractor and pulling the clutch clear down and shutting the tractor off.

'Q. Why do you do that? A. You can't stick your hands in there without taking that off.

'Q. Could you take it apart with the power take-off running? A. No. You could but it wouldn't be safe.

'Q. So whenever it plugs up, you knew it wasn't safe to be fooling around in there so you would shut off the power take-off, is that correct? A. That's right.

[261 Iowa 940] 'Q. Now when the silage came into the conveyor on the accident load, you knew it was dangerous to put your hand in there too, didn't you? A. I didn't put my hand in there.

'Q. You knew it would be dangerous if you did put your hand in there? A. Yes.

'Q. You knew if you put your hand in there you were apt to have it badly injured, didn't you? A. That's right.

'* * *

'Q. Now were all of the guards in place and all the shields in place on this wagon? A. Except that one place where it had been cut.

'Q. There was no shield for that as far as you know? A. No.

'Q. Is it a fact the enlarging of the opening there would permit the silage to come out more freely? A. Yes, I reckon it would.'

Defendant Swenson testified without objection or contradiction in the record:

'Q. Now, Mr. Swenson, there has been some talk here about cutting away of the opening out of which the silage exits as it goes into the chute and then into the blower, were you present when that testimony was introduced? A. Yes.

'Q. I direct your attention to this drawing and you will observe that it indicates that starting at the right hand corner of the opening as you face the side of the chuck wagon, that it extends out for a distance and then it goes up into the left hand corner. Now do you have any notion how far it is from the right hand corner to the point where it starts to go upward? A. I wouldn't know exactly, I would judge somewhere between six and eight inches I believe.

'Q. Do you have any knowledge as to the approximate size of this opening out of which the silage exits? A. No, I never measured it.

'When I bought the chuck wagon the opening was not as shown in the illustration. The opening was straight across instead of the diagonal cut. A change was made on this opening.

Page 765

'Q. And by whom was that made?...

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3 cases
  • Dobson v. Jewell, 54526
    • United States
    • United States State Supreme Court of Iowa
    • September 9, 1971
    .......         The ground of defendant's liability is not danger, but negligence. Knudtson v. Swenson, 261 Iowa 929, 947, 155 N.W.2d 756, 769. The cited case analyzes many of our farm ......
  • Sueppel v. Eads, 52777
    • United States
    • United States State Supreme Court of Iowa
    • February 6, 1968
  • Postma v. Iowa Dist. Court for Plymouth County, 87-1594
    • United States
    • United States State Supreme Court of Iowa
    • April 19, 1989
    ......        Courts do not have authority to legislate. Knudtson v. Swenson, 261 Iowa 929, 931, 155 N.W.2d 756, 757 (1968). However, these guidelines do not alter ......

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