Knudtson v. Swenson
Citation | 155 N.W.2d 756,261 Iowa 929 |
Decision Date | 09 January 1968 |
Docket Number | No. 52581,52581 |
Parties | Russell M. KNUDTSON, Appellee, v. Gordon SWENSON, Melvin Juveland and Harlan Evenson, Appellants. |
Court | United States State Supreme Court of Iowa |
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.
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.
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 (We reproduce these exhibits from the record.)
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.)
Exhibit DD
'* * * 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.)
For handling forage crops and other bulky material, install the extension sideboards.
'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 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.)
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:
'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.
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'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.
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Defendant Swenson testified without objection or contradiction in the record:
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