Oestereich v. Leslie

• Decision Date: 13 January 1931
• Docket Number: No. 40535.,40535.
• Citation: 234 N.W. 229,212 Iowa 105
• Parties: OESTEREICH v. LESLIE.
• Court: Iowa Supreme Court

212 Iowa 105

234 N.W. 229

OESTEREICH

v.LESLIE.

No. 40535.

Supreme Court of Iowa.

Jan. 13, 1931.

Appeal from District Court, Cass County; Earl Peters, Judge.

Action by an employee against the defendant for damages for personal injury alleged to have resulted by reason of negligence of defendant, as his employer, in furnishing for the use by plaintiff, as such employee, of a tractor with a defective clutch. The defendant answered by a general denial, an affirmative defense of assumption of risk, and pleaded contributory negligence. The plaintiff by way of reply alleged, in substance, that while he knew of the defective clutch, yet, shortly before the injury, he had fully informed the defendant of said condition and the defendant promised and assured him that he would equip the machine with a new clutch. Trial to the court and a jury. Verdict and judgment for the plaintiff. The defendant appeals.

Affirmed.Ralph Dykes, of Omaha, Neb., and G. C. Dalton, of Atlantic, for appellant.

Swan, Martin & Martin, of Atlantic, for appellee.

WAGNER, J.

Appellant's grounds for reversal may properly be summarized as follows: (1) That the court erred in overruling his motion for a directed verdict made at the close of plaintiff's evidence and renewed at the close of all of the evidence; (2) that the court erred in the giving of certain instructions; (3) that the court erred in refusing to give certain requested instructions; (4) that the court erred in the rulings relative to the introduction of testimony; (5) that the court erred in holding that plaintiff's petition states a cause of action; (6) that the verdict of the jury is contrary to the law as given by the court in the instructions.

Appellant's motion for a directed verdict may be properly summarized as follows: (1) The plaintiff, at the time of his injury, was not acting within the scope or course of his employment; (2) that plaintiff assumed the risk arising by reason of the defective condition of the clutch; (3) that there is no evidence to show that the claimed defect in the clutch was the proximate cause of plaintiff's injury; (4) that the evidence is insufficient to support a verdict for the plaintiff.

If the jury, from testimony which is uncontradicted, and from that offered by the plaintiff and the fair inferences to be drawn therefrom, could properly find for the plaintiff on the issues joined, then the court did not err in the overruling of defendant's motion for a directed verdict. We will briefly summarize such testimony. The defendant is the owner of a large farm, and since 1918 had operated tractors in connection with his farming operations. In July, 1927, he purchased a new Hart-Parr 28-50 tractor. The plaintiff's business for ten years or more prior to the employment was that of a blacksmith, although during the farming season of 1927 he was engaged in the pursuit of farming a rented farm. He was employed by the defendant to operate this tractor for threshing, hulling of clover, plowing, and other work in connection with farming operations, in which a tractor is ordinarily used. The plaintiff had very little experience in the driving or operation of tractors. One Lindeman, residing about fourteen miles distant, was the agent for the company and sold the tractor to the defendant. The appellant knew of appellee's general business of blacksmithing prior to the time of the employment. While the appellant testifies that the appellee told him that he was a master mechanic, this is denied by the appellee, who testified that he told the appellant that he thought he could run or operate the tractor. The appellee and his family and the appellant resided in the same neighborhood. The operation of the tractor was first begun on July 14, 1927, being used at that time for threshing purposes. Within a week or so, there was trouble with the clutch, it would slip. In order to engage the power for use, the clutch lever is pulled backward, and to disengage it (throw it out of gear), it is pushed forward. This clutch would stick so that it was quite difficult to disengage, the plaintiff being compelled to kick it in order to bring about the disengagement. When the trouble first began, the appellee drove to the appellant's house and “told him to get the tractor man at once, that I could not do anything with that clutch, the clutch was about gone, and to get the tractor man at once from the factory. He (the appellant) said he would. I asked him a few days later and he claimed the Hart-Parr people didn't have a man at that time, but they would send one as soon as they could.” New lining or facing was put in, but this did not remedy the trouble. The appellee testified “that the face plate wasn't true, that about one-third of it had never touched, it was rusty and the rest of it--two-thirds was quite rough, but it was bright, it had been working, but it didn't seem to be true, it had evidently tore the lining of the clutch.” He further testified that on Sunday prior to the accident, he and the appellant put in a disc or clutch plate, but that this did not remedy the defect; that after it was put in, he called the appellant's attention to the defective condition and to the “wobble” in the clutch and that it had considerable play endways; that the tractor was not used until the following Friday, when the accident occurred; that some time during the week appellant called at the home of appellee and directed him to use the tractor to finish the plowing, as it was getting late; that appellee again called his attention to the defective condition of the clutch, “that it was so hard at times to disengage that clutch,” and that he had to disengage it so often in plowing; that the appellant at that time promised to get the repairs; that the appellant directed him at that time to finish plowing the small piece northwest of the house and then to go into the next field--the field lying north thereof. As to this conversation at the home, the plaintiff is corroborated by the testimony of his wife. She testified, in part, as follows: “Mr. Leslie came to our house one evening, a few days, perhaps a couple of days before the accident to talk over this plowing and work with Mr. Oestereich, and Mr. Oestereich spoke to him and told him, we made those repairs Sunday and yet you know the tractor don't work right. Mr. Leslie said he knew it, but he would get the necessary repairs as soon as possible, he felt it was getting late in the season and that it would freeze before he got all of his plowing done. He told him to go ahead and plow.” On Friday afternoon, November 4, 1927, the plaintiff finished plowing the small tract as directed by the appellant and then proceeded to the next field to the north thereof, a portion of which he had previously plowed. He plowed around the field a few times until he came to places where the ditches were getting too deep to cross until they were plowed in. He had plowed in a few of these ditches before he met with the accident. He proceeded to plow down the side, throwing the dirt into the bottom of the ditch. At this point, the appellee testified:

“I came to this (ditch) where I had the accident, which was a lot deeper after I got up to the upper end of the ditch where it was getting deeper all the way, I pulled out around it and not fill any further when something happened, I don't know what it was, it slipped or something, slipped, pulled my wheel into the ditch.

Q. Was your plow directly behind your tractor after you slipped in? A. Yes, sir.

Q. Was the tractor and plow sitting at an angle to each other after the front end had slipped into the ditch? A. Yes, a little, the front wheels slipped into the ditch, threw the front end of the tractor a little bit south and slid over a little, the front end--the rear end was in front of the plow.

Q. Now what did you do when the front end slid into the ditch? A. I tried to back up, cramped my wheels so as to get out and backed up, but it was slippery and wet and the front end of the tractor wouldn't come out and I could not back up but about four feet, not over five, I tried to back out but I could not do that, the plow would rear up in front, and that is as far as I got.

Q. Why was it you could not back? A. The plow would rear up, the hind wheel is not stationary and it lops over and the plow would raise up in front, it will not back up and lay over on its side.

Q. What did you do after you tried to back up? A. I saw I could not get out that way, so I disengaged the plow so I would work my front wheels over a little and the hind wheels further ahead so as to back out without running over the plow. I could have run over the plow and smashed it, but I didn't want to do that, wanted the front wheels around so I could get out.

Q. What did you do then when you tried to get out in this manner? A. When I pulled up ahead to get my wheels cramped to get my rear end ahead far enough, I tried to disengage the clutch, and I could not do it, and I tried to kick it out and didn't get it.

Q. Then what happened? A. It fell over, I don't remember much about that, it was done pretty quick.”

The ditch at this point was from two to three feet deep. The rear tractor wheels went into the ditch with the power disengaged, or the machine in gear, because, as the appellee claims, the clutch stuck as it has done previously, and he was unable to disengage the power. The front end of the tractor raised upward, and it stood in the ditch in a perpendicular position and pinned the plaintiff beneath the angle iron and between the tractor and the edge of the ditch. This angle iron rested across his left leg. He was unable to extricate himself from his precarious position, where he remained for three hours or more before he was found in his dilemma and taken therefrom. His injury is serious and of a permanent nature. We will not dwell upon the character and extent of the injury, as, without doubt, it is ample to support the verdict of...