McCormick v. Smith, 54718

• Decision Date: 09 November 1970
• Docket Number: No. 54718,No. 2,54718,2
• Citation: 459 S.W.2d 272
• Parties: William McCORMICK and Georgia McCormick, Respondents, v. W. E. SMITH, Jr., Appellant
• Court: Missouri Supreme Court

Page 272

459 S.W.2d 272

William McCORMICK and Georgia McCormick, Respondents, v. W. E. SMITH, Jr., Appellant.

No. 54718.

Supreme Court of Missouri, Division No. 2.

Nov. 9, 1970.

James E. Reeves, Ward & Reeves, Caruthersville, for respondents.

Dwight Crader, Sikeston, for appellant.

HENRY I. EAGER, Special Commissioner.

Plaintiff William McCormick, a farm worker, brought this action for personal injuries suffered when his hand was caught in the moving belt of a combine. It is not denied that he suffered severe injuries, and indeed there is no claim that his verdict of.$19,000 was excessive. Georgia McCormick, his wife, sought recovery for her loss of consortium, support and services; her verdict was for $2,000 and that is not claimed to be excessive. The defendant is W. E. Smith, Jr., the operator of farm land of about 2,500 acres who had employed plaintiff William McCormick as a farm worker for several years. (When we hereafter refer to 'plaintiff' we are indicating William McCormick.) Deere and Company, the manufacturer of the combine, was originally a defendant, but the case as to it was dismissed with prejudice upon the payment of $9,000. The injury occurred on October 27, 1967, in Pemiscot County.

The negligence charged against Mr. Smith is, in substance: that he failed to furnish plaintiff a reasonably safe place to work; that he furnished to plaintiff a defective and dangerous machine without screens or guards; that he failed to furnish plaintiff with sufficient tools; that he failed to provide plaintiff with adequate assistance; that he required plaintiff to work long hours without rest, and in the nighttime without adequate lights; and that he failed to warn plaintiff of the risk and danger present. The defendant denied plaintiff's allegations generally and pleaded both contributory negligence and assumption of risk. The case was submitted to the jury upon the following allegations of negligence: (a) failure to provide reasonably safe conditions for work, or (b) reasonably safe machinery, or (c) reasonably adequate help. The Court instructed for the defendant on both contributory negligence and assumption of risk (an extremely doubtful defense under our recent cases.) We do not, by this opinion, approve in full the instructions as given for plaintiff or defendant, but there are no objections briefed here and we shall not consider them further.

Defendant had bought the combine from a local dealer several years prior to the accident. There is no contention that it was not in a reasonably good operating condition, and the only complaint in this regard is that it was not equipped with a screen or guard to protect the main drive area and pulley on the left side when the operator was doing such work as plaintiff did here. Such a shield was listed in a Parts Catalogue, but there was no discussion whatever of the matter when the combine was purchased. The part was designated as a 'Left Hand Drive Shield.'

Plaintiff, 52 at trial time, had a sixth grade education, and had done farm and mechanical work substantially all of his adult life. He had worked for defendant for at least four or five years prior to his injury, doing 'a little bit of everything,' including the operation of tractors and other farm machinery. He was paid $1.15 per hour and was furnished a house. His annual earnings are immaterial here. Mr. Smith also rented him a tract of land which he was permitted to operate on shares. On the day in question, after he had been combining beans for two or three days, he went to work between 6:00 and 7:00 a.m.; he first serviced the combine, checking it and greasing it, and he started combining as soon as the dew was off. Except for brief periods for lunch and 'supper' he operated the combine until 9:30 p.m., which was the approximate time of his injury. At that time it had begun to 'drizzle'; Mr. Smith came out shortly before 9:30 and told him to finish that one truck load and quit. Smith then left. Plaintiff had been having some trouble during the evening because the combine was choking up; the beans did not 'want to come up in the grain bin,' so he stopped and cleaned out the elevator, finishing as defendant came along. This action still did not accomplish the desired result so, after another round or two, plaintiff stopped, 'shut my combine off' but left the motor idling; this left the main drive belt revolving. The motor and belt could have been shut off by turning the ignition switch. There were two lights in the front of the combine but those, plaintiff said, did not illuminate the rear or sides; he testified that there were no other lights. At this time plaintiff realized that he would have to adjust the belt which pulled the beans through (by an auger), as it was apparently loose and slipping. He had made this adjustment on various prior occasions; it consisted of loosening a nut on the 'idler' which was at the left side of the combine and comparatively low, and then pushing the 'idler' up, whereupon he would tighten the nut again. We have several photographs of the combine but, as frequently happens, they are not sufficiently explained in the evidence, and they are of little help. Plaintiff, using a 'crescent' wrench and down on his knees, or 'squatting,' put the wrench on the nut, which was 'pretty tight' and pulled hard on it; the wrench slipped off of the nut and his left hand went into the drive belt. The fair inference from his testimony is that this would not have happened if the wrench had not slipped, and in fact he testified that the slipping 'throwed me into the belt.' Plaintiff was taken rather promptly to a hospital where several operations were performed over a period of 60 days and he was convalescent at home for several months longer. He lost all four fingers down to the body of the hand; his thumb remained.

Plaintiff testified: that he could see the 'bulk' of the idler sufficiently to get the wrench on the nut; that he 'couldn't see the belt' but he knew that it was there (at another point he indicated that he might have seen the 'bulk' of the moving belt); that he was just thinking about tightening the idler, and not about the belt; that if there had been a guard over the drive belt he couldn't have gotten into it; that he did not intentionally put his hand on the drive belt; that he had driven and serviced this combine for at least two or three weeks, and was familiar with its controls and moving parts; that he had made this adjustment several times, and usually left the motor running but turned it off for big jobs; that there was no danger in this adjustment if one did not slip, but he knew that any part of a combine is dangerous if you fall into it; that he could have shut off the motor; that one man usually operates a combine and, in that country, often does it at night; that the 'idler' is a pulley about six inches in diameter; that he was 'feeling pretty tired' at the time of the accident. The plaintiff is incapacitated from doing many things which he previously did, both at work and at home. He was re-employed by the defendant when able to go back to work, but was unable to hold a job as foreman because of his inability to do shopwork.

The defendant testified by deposition. We shall detail little of his testimony, in view of the status of the case. He testified: that plaintiff had operated sundry pieces of machinery and had done maintenance work; that the belt on the combine was exposed 'between the pulleys'; when he saw plaintiff that night the latter had just cleaned out the grain elevator to relieve a choking of the belt and auger; that tightening the 'idler' also reduces the likelihood of choking; in so doing one is within two or three feet of the drive belt; that there was a light over the grain bin (which plaintiff apparently denied) but that he did not know whether it was working, and in any event it points to the rear; that there was no light which illuminated the area around the drive belt; that no one had advised him (defendant) that a screen for the combine was available; that he gave no warnings to plaintiff; that plaintiff was tired at the time. In a written statement defendant had stated that he believed it was his fault that plaintiff 'got hurt'; he sought to explain this at the trial, but the question is not material here; defendant does not contest the making of a submissible case of negligence.

Defendant has briefed three points: (1) that the Court erred in discharging nine members of the jury panel for cause because they owned or had owned John Deere combines; (2) that plaintiff was guilty of contributory negligence as a matter of law; and (3) that the Court erred in permitting plaintiff's counsel to argue to the jury a mathematical formula for calculating damages for pain and suffering. Since the second point could be determinative of the whole case we consider that first.

In substance, defendant's position is: that plaintiff was entirely familiar with the operation of the combine, knew how to turn off the motor and drive belt, and knew that contact with its moving parts was highly dangerous; that he just was not thinking about the belt, that he did not ask for assistance or lights, and that he knew that it was safer to shut off the motor for this job. In conclusion, defendant urges that plaintiff voluntarily exposed himself to a known danger which he appreciated, at least in the event of a slip or fail. Counsel cites two cases and seeks to distinguish the case of Hightower v. Edwards et al., Mo., Banc, 445 S.W.2d 273. The cases he cites are Bartlett v. Taylor, 351 Mo. 1060, 174 S.W.2d 844, and Bridges v. Arkansas-Missouri Power Co., Mo.App., 410 S.W.2d 106. Bartlett, supra, is on wholly different facts; it involved the supposed repair of the mechanism of a garage door by a lessor. The door subsequently fell and injured the plaintiff. On the issue of contributory negligence the Court held that a voluntary exposure to a known danger...