Lamb v. York, 569S107

• Decision Date: 08 May 1969
• Docket Number: No. 569S107,569S107
• Citation: 247 N.E.2d 197,252 Ind. 252
• Parties: Ared LAMB, Appellant, v. Lloyd YORK, Appellee.
• Court: Indiana Supreme Court

Page 197

247 N.E.2d 197

252 Ind. 252

Ared LAMB, Appellant, v. Lloyd YORK, Appellee.

No. 569S107.

Supreme Court of Indiana.

May 8, 1969.

Edbert P. Zell, Jr., Clinton, Jerdie D. Lewis, Terre Haute, for appellant.

Hansford C. Mann, Mann, Mann, Chaney, Johnson & Hicks, Terre Haute, for appellee.

GIVAN, Judge.

This cause comes to this Court on transfer from the Appellate Court. The Appellate Court rendered its written opinion on the 30th day of October, 1968, reversing the trial court and ordering a new trial in this cause. (241 N.E.2d 157.)

This was an action brought by the appellee against the appellant to recover damages for personal injuries received as a result of his left leg getting caught between the rollers of a self-propelled hay conditioner which the appellee was operating as an employee of the appellant. A jury trial resulted in a verdict and judgment for appellee in the amount of $50,333.00.

The Appellate Court reversed on the sole ground that the trial court had erred in overruling defendant's motion that the jury be discharged and the submission withdrawn from its consideration because plaintiff's counsel had called to the witness stand one Gale Jones and asked his business or occupation, to which the appellant objected, and over such objection the witness was permitted to answer that he was with the Home Office Claim Department of American States Insurance Company.

It is the position of this Court that the Appellate Court was in error in so holding. This question will be dealt with in this opinion along with the alleged errors in the order presented.

Appellant for his sole assignment of error in this Court alleges that the trial court erred in overruling his motion for new trial.

Appellant's first ground in his motion for new trial was that the damages assessed are excessive. However, he does not address an argument in his brief to support this point and thereby waives it under Rule 2--17 of this Court.

In his brief appellant groups the following grounds in his motion for new trial:

'2. The verdict of the jury is not sustained by sufficient evidence.

'3. The verdict of the jury is contrary to law.

'5. The Court erred in overruling defendant's motion made at the close of all the evidence to instruct the jury to return a verdict for the defendant.'

An examination of the record discloses at the time of the accident the appellee was a man thirty years of age who had worked as a farm laborer prior to working for the appellant in the same capacity; that during his previous employment he had operated various kinds of farm equipment, but that he had not operated the self-propelled windrower and hay conditioner on which he was injured prior to the date of his injury.

On or about May 1 of 1962 the appellee had asked for employment and was employed by the appellant. Before the date of the injury the appellee observed the appellant operate the machine in question. On the day of the injury, July 10, 1962, the appellee observed the appellant operate the machine. The machine in question is self-propelled, guided by levers rather than a steering wheel, and, in addition, has some thirteen different controls that operate a reel, a cycle bar, conveying canvases and heavy ocrrugated type rollers into which the freshly mowed hay is conveyed and crushed in order to facilitate the drying of the hay.

The operator of the machine rides in a seat which is above and behind the cutting, conveying and crushing parts of the machine. There was a two-step metal ladder affixed to the side of the machine for the operator to reach the seat.

On the occasion in question, appellant after giving appellee some instruction on the operation of the machine left the appellee in sole operation of the machine in a field consisting of wheat stubble, clover and weeds, which was to be cut and crushed by the machine for the purpose of later bailing the material to be used as feed and bedding.

The field in question was about a half mile in length and the evidence discloses that the appellee had made ten to fifteen round trips prior to the accident. During this period of operation the appellee experienced difficulty with the machine in that the material being mowed would ball up in front of the crimping rollers. In an attempt to dislodge the material the appellee would back the machine and then proceed forward. This method proved less than satisfactory. The appellee testified that the appellant had not told him that the header should be lifted prior to the backing of the machine.

At the time of the injury the clogging was so bad that appellee was unable to clear the machine. He left the engine running on the machine, placed levers in what he thought to be the off position and, in fact, did stop the motion of the reel and cycle bar; however, there was evidence that the lever which controlled the rollers had a peculiarity of which the appellant had not advised the appellee in that in the moving of the lever there was a 'hard spot' which if not overcome would leave the rollers in operation, even though the lever had been placed in what the appellee thought was an off position. The rollers were under a shield and could not be seen by the appellee from his seat on the machine.

There was further evidence that the rollers when in motion made very little noise and would not be heard by an operator on the machine with the engine running. With the machine in such a position and with the crimping rollers still in motion under the hood, the appellee left his seat, stepped upon the hood directly behind the reel of the machine and reached down with his left leg and tried to dislodge the ball of hay and straw that had accumulated under and behind the reel. While in this position, the appellee lost his balance and his foot and leg were caught by the turning rollers, thus sustaining severe injury.

From the foregoing it appears that there was sufficient evidence presented to the jury from which it could find that the appellant was, in fact, guilty of negligence in not giving the appellee full and complete instructions in view of the nature of the machine and the hazards involved in its operation.

In reviewing a judgment of the trial court this Court has consistently stated it will consider the evidence most favorable to the appellee, when the sufficiency is challenged. A.S.C. Corporation v. First National Bank of Elwood (1960), 241 Ind. 19, 167 N.E.2d 460.

Appellant also claims that the appellee was guilty of contributory negligence as shown by the evidence and, therefore, the trial court should have sustained his motion for a directed verdict. In support of this proposition he cites the case of Hunsberger v. Wyman (1966), Ind., 216 N.E.2d 345. However, in the Hunsberger case the facts were that the two parties, that is the employer and the injured party, had the same knowledge and the same opportunity for knowledge to observe the existing danger; that under those circumstances each had the same duty to exercise reasonable care, including the duty to see and appreciate and avoid the danger. However, in the case at bar the entire theory of the appellee's case was that the appellant had the full knowledge as to the nature of the machine, the manner of its control and operation and the potential dangers therein involved, whereas the appellee had only a very limited knowledge of these facts and was almost wholly dependent upon the appellant for his knowledge. These allegations and testimony by the appellee in this case, together with the defense presented by the appellant, placed the question squarely before the jury as to whether or not the appellee was guilty of contributory negligence. This, therefore, was a question for the jury in this case and it would have been error for the trial court to have directed a verdict on that ground. Larkins v. Kohlmeyer (1951), 229 Ind. 391, 98 N.E.2d 896; Robertson Bros. Dept. Store v. Stanley (1950), 228 Ind. 372, 90 N.E.2d 809.

There is evidence in this record as above set out from which the jury could find that the actions of the appellee were not negligent, and that he within the limited knowledge he had of the machine and with the limited instruction which had been given him by the appellant, was operating the machine within the best of his ability, and that he did, in fact, exercise ordinary and reasonable care to avoid injury.

The appellant has cited several mechanical corn picker cases, but an examination of each of these cases indicates that the injured party knew and fully understood the operation of the husking rollers and that in each of those instances the operator deliberately chose a known hazardous method to clear the rollers, thereby knowingly running the risk of the injury he sustained. The jury in this case was clearly acting within its province upon the evidence submitted in finding that the appellee was free of such contributory negligence.

For the above reasons the trial court was also correct in overruling appellant's motion for a directed verdict.

Appellant also urges his ground 4(a) in his motion for new trial, which reads as follows:

'4. Error of law occurring at the trial:

'(a) The Court erred in overruling defendant's motion that the panel be discharged and submission withdrawn from the consideration of the jury in plaintiff's counsel calling to the witness stand Gale Jones, and asking his business or occupation for the sole reason getting before the jury that the business or occupation of said witness was with the Home Office, Claim Department, American States Insurance Company, which witness was called to the stand by plaintiff's counsel after the Court had sustained defendant's motion for separation of witnesses, which said questions, answers, comments of counsel, motion to instruct the jury to disregard the witness's answer, and defendant's motion that the panel be discharged and the submission withdrawn, are as follows:

'Q. State your name please.

'A. Gale...