Meadowlark Farms, Inc. v. Warken

• Decision Date: 22 May 1978
• Docket Number: No. 1-1276A243,1-1276A243
• Citation: 376 N.E.2d 122,176 Ind.App. 437
• Parties: MEADOWLARK FARMS, INC., Appellant (Defendant below), v. Harvey A. WARKEN, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 122

376 N.E.2d 122

176 Ind.App. 437

MEADOWLARK FARMS, INC., Appellant (Defendant below), v. Harvey A. WARKEN, Appellee (Plaintiff below).

No. 1-1276A243.

Court of Appeals of Indiana,First District.

May 22, 1978.

Gus Sacopulos, Sacopulos & Crawford, Terre Haute, for appellant.

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

LYBROOK, Presiding Judge.

Appellant-defendant, Meadowlark Farms, Inc. (Meadowlark), appeals from a verdict granting appellee-plaintiff, Harvey A. Warken (Warken), damages in the sum of $125,000 for injuries to his arm sustained from a fall into a corn auger located on Meadowlark's premises.

FACTS:

Warken, a high school graduate, farmed for forty years before the accident. In addition to his hog business, during the years 1966 through 1971 and again in 1973, Warken sharecropped under a lease agreement with Meadowlark, raising soybeans and corn. He regularly delivered the soybeans to an elevator in Terre Haute and the corn to the Meadowlark facilities.

Warken arrived at Meadowlark's premises on October 23, 1973, and followed his regular procedure for delivering a truckload of corn. He backed up the Ford truck to the tire dumphopper, raised the truck bed about halfway, started the tractor which operated the auger, and finally, opened the endgate to let the corn run out. The corn flowed into the tire dumphopper while the auger lifted the corn up and into the grain bin. After emptying that load, Warken returned in a Chevrolet truck with another load and repeated the dumping procedure. At the time of the injury Warken was standing on crushed rock mixed with some corn behind the truck on the driver's side. The corn was coming a little too fast, and to prevent it from spilling over the tire he attempted to shut down the truck's endgate. By extending himself to reach the endgate handle, approximately four feet away and two feet above the ground, he lost his balance, his feet slipped, and he fell. His left arm was immediately caught in the exposed auger.

Meadowlark had used this tire dumphopper since 1966. In November, 1969, an employee at Meadowlark had slipped while standing on the back of a truck, and severely injured his feet in the auger. Two years before Warken's accident, the resident farm manager at Meadowlark had been instructed by another of Meadowlark's agents to construct a cover for the exposed end of the auger as a safety precaution. The resident farm manager did construct such a cover and placed it on the auger. The testimony of the other farmers who had delivered grain to the facilities at Meadowlark was consistent in that, before Warken's injury, none had ever seen a cover over the auger, or knew that one was available.

The verdict of the jury indicates a finding that Meadowlark was negligent, either in failing to provide a protective barrier over the moving parts of the auger, or in removing the protective barrier over the auger, or in both activities, and that Warken was not guilty of contributory negligence nor assumed the risk of injury from the dangers presented by the unguarded auger.

We affirm.

ISSUES PRESENTED FOR REVIEW:

The issues presented by this appeal are as follows: ¹

(I) Whether the trial court erred in refusing Meadowlark's motion for judgment on the evidence at the close of Warken's case.

(II) Whether the trial court erred in refusing Meadowlark's motion for judgment on the evidence at the close of all the evidence.

(III) Whether there was sufficient evidence for the jury to conclude that the breach of a duty owed to Warken by Meadowlark was the proximate cause of Warken's injuries.

(IV) Whether Warken was guilty as a matter of law of contributory negligence that proximately caused or contributed to cause his injuries.

(V) Whether Warken assumed or incurred the risk of injury as a matter of law.

(VI) Whether the trial court erred in refusing to give Meadowlark's tendered final instructions 2, 3, and preliminary instruction 9.

(VII) Whether the trial court erred in refusing to give Meadowlark's tendered instructions 4, 5, 6, and 7.

(VIII) Whether the trial court erred in restricting cross-examination of Warken with respect to alternative methods available to him in the performing of his task at the time of his injury, when Warken's counsel did not object to such line of questioning.

(IX) Whether the trial court erred in giving its final instruction number 14.

I.

Meadowlark first contends that the trial court erred in overruling Meadowlark's motion for judgment on the evidence at the close of Warken's case. However, Meadowlark waived any error in the overruling of its motion for a judgment on the evidence at the close of the presentation of Warken's evidence when Meadowlark proceeded to offer evidence in its own behalf. Lamb v. York (1969), 252 Ind. 252, 247 N.E.2d 197; Indiana Rules of Trial Procedure, TR. 50(A).

II.

Meadowlark further contends that the trial court erred in denying its motion for judgment on the evidence at the close of all the evidence.

A ruling on a motion for judgment on the evidence is limited to a consideration of the evidence and all reasonable inferences therefrom, most favorable to the party against whom the motion is made.

"The quantum of evidence necessary for a plaintiff to avoid a directed verdict at the close of his evidence has been determined by our Supreme Court to be any evidence or legitimate inference therefrom tending to support at least one of the plaintiff's allegations." (Original emphasis). Mamula v. Ford Motor Co. (1971), 150 Ind.App. 179, 181, 275 N.E.2d 849, 851; TR. 50.

When passing on the motion presented at the close of all the evidence, the trial court was required to determine if there was some evidence of negligence on the part of the defendant which the jury was entitled to consider.

The relation of the parties to each other establishes the duty owed by Meadowlark. Warken entered upon the premises by express invitation of the owner, Meadowlark, to deliver the share of his crops owed to Meadowlark. It is undisputed that Warken was a business invitee. See Standard Oil Co. v. Scoville (1961), 132 Ind.App. 521, 175 N.E.2d 711.

Our Supreme Court discussed the duty of the landowner or occupier to the invitee in Hammond v. Allegretti (1974), 262 Ind. 82, 87, 311 N.E.2d 821, 825:

"(A) landowner or occupier is under a duty to exercise reasonable care for the protection of invitees on the business premises. This duty arises as a matter of law. The question of whether the defendant-landowner exercised the requisite degree of care is strictly a question for the trier of fact." (Original emphasis).

The duty imposed upon Meadowlark was to exercise reasonable care in maintaining its business premises in a reasonably safe condition, and to take reasonable precautions to protect the invitee. This duty applies as a matter of law in all cases arising out of the invitor-invitee context. Hammond, supra; Hobby Shops, Inc. v. Drudy (1974), Ind.App., 317 N.E.2d 473.

Meadowlark's legal liability is a question to be determined by the jury from a consideration of the circumstances, the premises, and actions taken or actions not taken. ² Hammond, supra.

Meadowlark owned and provided the tire dumphopper, auger, and bins to which farmers delivered grain on the Meadowlark premises. At times, its agents directed the farmers, including Warken, to deliver their grain to these bins. Those delivering corn operated the equipment without assistance from Meadowlark personnel. A Meadowlark employee had previously been severely injured in the auger. The farm manager was ordered to construct a protective shield to cover the moving parts of the auger as a safety precaution. This cover, as designed, did provide safety; however, it was not in place at the time of Warken's accident.

We cannot say that there is a total absence of evidence or legitimate inferences in favor of Warken upon the issue of negligence, or that the evidence is without conflict and susceptible of but one inference in favor of Meadowlark.

III.

Evidence of negligence must be accompanied by some evidence that the negligence proximately caused the injury. Meadowlark argues that failure to keep the auger covered did not cause Warken's injury, and, even if this is found to be a cause of the injury, that Warken's actions were an independent responsible agency which interrupted the line of causation and extinguished its liability.

The question whether the defendant's conduct caused the plaintiff's injury is a question of fact.

"A cause is a necessary antecedent: in a very real and practical sense, the term embraces all things which have so far contributed to the result that without them, it would not have occurred. It covers not only positive acts and physical forces, but also preexisting passive conditions which have played a material part in bringing about the event." W. Prosser, The Law of Torts, 237 (4th Ed. 1971).

At times, many causes will influence a result, but as a matter of public policy, courts limit liability for negligent acts to the conduct which proximately caused the injury. Factual causation becomes proximate causation under the test of foreseeability. Swanson v. Slagal (1937), 212 Ind. 394, 8 N.E.2d 993; see, State v. Dwenger (1976), Ind., 341 N.E.2d 776; Galbreath v. Engineering Construction Corp. (1971), 149 Ind.App. 347, 273 N.E.2d 121; Allison v. Huber, Hunt & Nichols, Inc. (1977), Ind.App., 362 N.E.2d 193.

"One's negligence may furnish a mere condition for the incidence of another's negligence and allow the original actor to escape liability. Schroer v. Funk & Sons, Inc. (1968), 142 Ind.App. 223, 233 N.E.2d 680; Slinkard v. Babb (1953), 125 Ind.App. 76, 112 N.E.2d 876. If true, such negligence was not the active or efficient cause of the resulting injury. However, the ultimate test of legal proximate causation is the reasonable foreseeability. The assertion of an intervening, superseding cause...