Mooney v. Nagel

• Decision Date: 03 May 1960
• Docket Number: No. 49930,49930
• Citation: 103 N.W.2d 76,251 Iowa 1052
• Parties: W. Stanley MOONEY, Appellant, v. John W. NAGEL, Appellee.
• Court: Iowa Supreme Court

Page 76

103 N.W.2d 76

251 Iowa 1052

W. Stanley MOONEY, Appellant, v. John W. NAGEL, Appellee.

No. 49930.

Supreme Court of Iowa.

May 3, 1960.

Rehearing Denied June 17, 1960.

Pruss & Flores, Cedar Rapids, for appellant.

Rees, Remley & Heiserman, Anamosa, for appellee.

THORNTON, Justice.

Plaintiff was employed by defendant to operate a corn sheller doing custom shelling. He was injured on October 24, 1957, in the course of his employment and alleges in this action his injury was caused by defendant's negligence in providing defective equipment for him to work with. The trial court sustained defendant's motion for a directed verdict.

I. Defendant argues for an affirmance because, it is said, plaintiff has not assigned or argued error in sustaining the motion to direct upon the grounds of lack of proximate cause, plaintiff's negligence being the sole proximate cause and plaintiff's assumption of risk. We think the appeal should be considered on its merits and not, in effect, summarily dismissed on the technical consideration defendant urges.

Defendant's motion to direct is based upon 13 numbered grounds, including those incorporated by reference. There is much repetition in them. They could well have been stated as three grounds substantially as follows: Insufficient evidence that defendant negligently furnished plaintiff a reasonably safe corn sheller with which to work; insufficient evidence such alleged negligence was the proximate cause of plaintiff's injury; and as a matter of law plaintiff assumed the risk of defendant's negligence.

The court violated rule 118, Rules of Civil Procedure, 58 I.C.A., by not making a separate ruling on each ground but sustained the motion generally. However, in explaining to the jury its reason for directing the verdict it stated it was because it thought 'there was no evidence it (corn sheller) was not a safe instrument.'

In his opening brief plaintiff's first two assigned errors are: 'The court committed error in sustaining the motion for directed verdict and holding * * * as a matter of law the corn sheller was not in an unsafe or defective condition.' and 'The record evidence presented a question for the jury and it was error to withdraw the case from the jury as the evidence is replete with issues of negligence.' Both these assignments are fully argued.

Defendant's brief argues the evidence fails to show his alleged negligence was the proximate cause of plaintiff's injury but affirmatively shows plaintiff's negligence was the sole cause thereof. Plaintiff's reply brief answers this argument for defendant. Both in his printed argument and upon oral submission to us defendant's counsel conceded the issue of assumption of risk was for the jury. This amounts to a concession his motion to direct was not good upon the ground of assumed risk.

Rule 118, Rules of Civil Procedure, was intended to avoid the necessity of an appellant's arguing each and every ground of a motion to direct or dismiss which has been sustained generally and to require the trial court to make clear to the parties and to this court what grounds of the motion are sustained, so the arguments on appeal may be confined to those grounds. See comments 1 Cook's Iowa Rules of Civil Procedure, page 752; and Nesci v. Willey, 247 Iowa 621, 629, 75 N.W.2d 257, 262.

Of course an appellee is entitled to argue here that grounds of the motion which were not sustained are good and should have been sustained. We have repeatedly so held. Shaw v. Addison, 236 Iowa 720, 733-734, 18 N.W.2d 796, 803-804, and citations; Hull v. Bishop-Stoddard Cafeteria, 238 Iowa 650, 667, 26 N.W.2d 429, 439, 440; and Emmert v. Neiman, 245 Iowa 931, 934, 65 N.W.2d 606, 608.

In Hull v. Bishop-Stoddard Cafeteria, supra, the trial court, as here, disregarded rule 118 by not ruling separately upon each ground of a motion to direct but sustained the motion generally. We disposed of such a contention as defendant makes here by saying: '* * * an appellant ought not be compelled to argue every ground of a motion in his opening argument in anticipation that appellee in his answering argument may invoke the rule as to some or all of the grounds not specifically ruled on by the trial court. Motions to direct verdicts were apparently particularly in the minds of those who drafted rule 118.'

The precedents defendant cites in support of its argument the appeal should not be considered on its merits antedate our Rules of Civil Procedure. Even under those decisions, however, in view of the indication in the record of the trial court's reason for directing the verdict and defendant's concession regarding the issue of assumed risk, we think plaintiff has sufficiently assigned as error and argued the grounds of the ruling upon which the case was disposed of.

II. We will examine the sufficiency of the evidence to show negligence and it is our duty to view the same in the light most favorable to plaintiff. Plaintiff was first employed by defendant to operate a custom corn sheller about August 15, 1957, and operated the corn sheller until his injury October 24th. He had been around farms all of his life but had not previously operated a corn sheller. The corn sheller was a John Deere mounted on a truck. On the left side of the sheller is an elevator to elevate the shelled corn to about eight or ten feet. The top of the elevator is a gooseneck and empties into the shelled corn auger. The corn is then augered out to a truck or wagon. At the top of the hopper on the shelled corn auger is a shield that fits around the gooseneck part of the elevator and prevents the shelled corn from spilling or bouncing out of the hopper as it comes out of the elevator. At the end of the auger below the elevator are gears that operate the auger. On the day of the injury plaintiff was operating the sheller on the Swanson farm. The shield that fits around the gooseneck over the hopper was not there and had not been for two or three weeks. The auger started kicking corn out of the hopper and to prevent this plaintiff started to wrap a grain sack around the gooseneck to take the place of the shield, the grain sack flapped back and as plaintiff reached down to catch the sack his hand caught in the gears at the end of the auger. Plaintiff had been instructed to place a sack around the gooseneck to prevent the grain from spilling out. He had informed defendant that the shield was missing on three occasions and defendant had then advised him to use a grain sack around the hopper until he got another shield. Plaintiff did not stop the sheller when he attempted to place the sack around the hopper. He could have stopped it, and started it in a matter of one or two minutes, but the shelling was in full operation and he had been told by defendant to keep the sheller going, ' * * * when the sheller was going he was making money and when it stopped he was losing money * * *.' One witness for plaintiff testified defendant asked him how it happened and when he, the witness, said plaintiff was putting a sack around the auger because the corn was spilling out, the defendant said, 'Oh, I have done that myself.'

We have often stated the rule that an employer must use reasonable care to provide and maintain for his employees reasonably suitable and safe appliances, machinery and tools with which to work. Frederick v. Goff, Iowa, 100 N.W.2d 624, 627; Von Tersch v. Ahrendsen, 250 Iowa ----, 99 N.W.2d 287, 299; Erickson v. Erickson, 250 Iowa 491, 94 N.W.2d 728, 732; O'Reagan v. Daniels, 241 Iowa 1199, 1205, 44 N.W.2d 666, 669, and citations; and Annotations, 67 A.L.R.2d 1120, 1130.

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