Mathes v. Trump

• Decision Date: 14 September 1970
• Docket Number: No. 54868,No. 2,54868,2
• Citation: 458 S.W.2d 297
• Parties: Leslie MATHES, a Minor, by and Through Henry L. Mathes, His Next Friend, Appellant, v. Karl TRUMP, Respondent
• Court: Missouri Supreme Court

Page 297

458 S.W.2d 297

Leslie MATHES, a Minor, by and Through Henry L. Mathes, His Next Friend, Appellant, v. Karl TRUMP, Respondent.

No. 54868.

Supreme Court of Missouri, Division No. 2.

Sept. 14, 1970.

Rehearing Denied Oct. 12, 1970.

Zenge & Smith, Canton, for appellant.

Jerome W. Seigfreid, Edward D. Hodge, Edwards, Seigfreid & Runge, Mexico, for respondent.

DONNELLY, Presiding Judge.

This is an action for damages for injuries sustained by Leslie Mathes when his arm and hand were caught in the auger of a grain dryer on the farm of Karl Trump. Leslie Mathes, through his next friend, sued for $100,000. The trial court, at the close of Leslie Mathes' evidence, sustained Karl Trump's motion for a directed verdict. Mathes perfected an appeal to this Court.

The question on this appeal is whether the trial court erred in sustaining the motion for directed verdict. In determining the question, we must consider the evidence from a viewpoint most favorable to Leslie Mathes and give him 'the benefit of every reasonable favorable inference which the evidence tends to support.' Berry v. Harmon, Mo.Sup., 329 S.W2d 784, 789.

On October 28, 1967, Leslie Mathes was twenty years of age and had been around farming and farm machinery most of his life. He had been trained in auto mechanics and had worked for eleven months in his father's garage business. He had seen the grain dryer in operation and knew how it operated, but had never done any work on it. On October 28, 1967, he and Harlan Armstrong, a 'fellow employee,' were instructed by Karl Trump, their employer, to work on the grain dryer. The auger within the dryer had become clogged.

Harlan Armstrong was positioned at the front of the dryer at a tractor which was attached to the power take-off shaft of the dryer.

Leslie Mathes was positioned at the rear of the dryer where he was directed by Karl Trump to stick his hand in a trap door and remove foreign matter from the auger.

Karl Trump was positioned at the left front corner of the dryer where he could see Leslie Mathes at the rear of the dryer and Harlan Armstrong at the tractor. Mathes and Armstrong could not see each other.

A procedure was set up whereby Leslie Mathes would attempt to remove corn from the auger, Karl Trump would then tell Mathes to remove his hand and arm from within the dryer, and would then direct Harlan Armstrong to apply the tractor power to the shaft. This procedure was repeated several times but the auger remained clogged.

Leslie Mathes is the only witness who testified as to what then occurred. His testimony reads in part as follows:

'Q. After this had been done what, if anything, did Mr. Trump do or say about leaving the place?

A. After we tried a few times, and he found a crack in that nut, he said he would go to town and see about getting parts for the clutch, that he would be back in a little bit.

Q. What were you doing when he told you he was going to do this? A. I was pulling corn out of the auger.

Q. With him gone, was there anybody there to give you signals that could see you and the tractor driver at the same time? A. No.

Q. What, if anything, did you and Mr. Armstrong then continue to do?

A. Before he started the tractor he would always holler back and tell me to get out of the road.

Q. Did you get out of the way when he hollered? A. Yes.

Q. Do you know how many times it was you had your hand in the auger and the tractor would be started after Mr. Trump left?

A. That's hard to tell. It was a few, but * * *

Q. More than one time? A. Yes.

Q. Just tell what happened at the time your hand was caught.

A. He started the tractor and shut it down, and I sat there a little bit to make sure he was going to get off and go back to the pipe wrench; and I stuck by hand in to clean it out, and at the very same instant I shoved my hand in there he started the tractor back up.

Q. Did Mr. Armstrong call to you or notify you in any way he was going to start the tractor or put the tractor in power takeoff this last time when your hand was caught? A. No.

Q. Had he started it at nay other time without first warning you or having Mr. Trump warn you? A. Not that I recall.

Q. When the auger caught your hand how did it start? Was it a sudden movement or fast movement or * * * A. It was very sudden.

Q. Tell the jury what happened when the auger started without any warning?

A. Suddenly I felt a pain, and them I was loose, and I just grabbed my arm and took off to the house.

Q. On this particular occasion will you tell us again how you were situated in cleaning the auger out? How had you been carrying out this operation?

A. You mean by reaching through this trapdoor with my hand and pulling the corn out?

Q. Yes. Before you were injured did you communicate with the man at the tractor to let him know you were going to do this?

A. After he would shut the tractor down, we would wait and then stick our hands in. He would communicate with us before he ever started the tractor.

Q. As a matter of fact, you would also communicate with him, isn't that true?

A. To a certain degree. We never actually spoke any words one way or the other, as far as me telling him I was out of the way.

Q. Isn't it a fact at times you would yell at him and tell him? A. I would tell him that I was in the clear.

Q. And he would start the tractor up? A. Yes.

Q. And you had done this several times before you were injured? A. Yes.

Q. But on the time you were injured you didn't yell at him?

A. No, I didn't.'

Leslie Mathes asserts in his petition that Karl Trump was negligent as follows:

'A. The Defendant negligently and carelessly failed to provide a safe place for Plaintiff to work, and Defendant negligently and carelessly failed to provide reasonably safe tools and machinery to do the work directed and instructed by the Defendant.

B. The Defendant negligently and carelessly failed to furnish a sufficient number of men to perform the task of cleaning the grain auger in that at least three men were required to do the work with reasonable safety to the Plaintiff and other co-workers.

C. Defendant knew, or by the exercise of ordinary care should have known, that the machinery on which Plaintiff was working was capable of causing much harm; and Defendant knew or should have known that the Plaintiff was young and inexperienced and Defendant negligently failed to properly instruct Plaintiff of a safe means of performing the work directed, and negligently failed to warn the Plaintiff of the dangers involved in the work, and negligently failed to instruct the Plaintiff when said Harlan Armstrong would engage the mechanism of the tractor to the grain auger.'

We have found no reported case involving the exact fact situation presented. However, the courts have dealt with analogous fact situations. In Richardson v. Mesker, 171 Mo. 666, 673, 72 S.W. 506, 507 (1903), plaintiff Heckel, and Reynolds, a fellow employee, were repairing a machine with which they had been working. Plaintiff placed his hand on a cogwheel. Reynolds put the machine in motion, without giving notice to plaintiff that he intended to do so, and plaintiff's hand was crushed. This Court said: 'The danger to the plaintiff from the movement of these cogwheels was manifest, and could be and was just as well appreciated by him as it could have been by the most skilled mechanic. He either thoughtlessly placed his hand between these wheels, or did so on the assumption that the machine would not be put in motion, until after Reynolds had clinched the nail at his (plaintiff's) end of the machine, of which fact, however, he had no assurance. Conceding, then, that Reynolds started the machine, yet if, under the circumstances, it can be said that Reynolds, without any notice of the dangerous position in which the plaintiff's hand was, was guilty of negligence in starting the machine without giving plaintiff any notice of his intention to do so, so, also, it must be said that the polaintiff was guilty of negligence in placing his...