Olson v. Katz
Decision Date | 18 October 1972 |
Docket Number | No. 54953,54953 |
Citation | 201 N.W.2d 478 |
Parties | Lester OLSON, Appellee, v. Ernest KATZ, Appellant. |
Court | Iowa Supreme Court |
Laird, Burington, Bovard & Heiny, Mason City, for appellant.
Finley & Teas, Mason City, for appellee.
Heard before and determined by the full bench.
The accident which culminated in this law action occurred on the farm of defendant-employer (Ernest Katz) when plaintiff-employee (Lester Olson) became entangled in a corn elevator power take-off shaft connection.
Plaintiff essentially alleged defendant was negligent in failing to (1) furnish plaintiff a safe working place, (2) provide him with safe working tools and machinery.
At close of all evidence trial court overruled defendant's motion for a directed verdict. Judgment was subsequently entered on a jury verdict for plaintiff. Motions by defendant for judgment notwithstanding the verdict and for new trial were overruled. He appeals. We affirm.
Basically defendant here contends trial court erred in submitting the case to a jury because plaintiff failed to establish any actionable breach of duty owing him by defendant.
The record discloses plaintiff was injured November 18, 1967, while elevating corn into a crib. Olson, then 55, had been engaged in farm or construction work and the operation of related machinery for at least 20 years. He was first employed by defendant in 1965, primarily assisting him harvest corn as hereafter described.
In 1966 Olson again worked several weeks for Katz, at least six or seven days being devoted to elevating corn with the same machinery in use during the 1965 employment period and at time of the incident here involved.
Olson had worked more than four weeks for Katz prior to occurrence of the instant accident.
A John Deere elevator was used to carry corn up and into the crib. Elevation force was supplied by means of a four foot tractor connected power take-off shaft. This was covered by an attached factory supplied expandable inverted U shaped metal shield. It was open at the bottom but extended one and a half to two inches below the shaft which was about three feet above and parallel to the ground.
At time of the accident both parties hereto were engaged in filling a large crib. Defendant was inside distributing the corn, plaintiff was on the ground. Finally defendant directed that plaintiff stop the elevator as the crib was full. Defendant next inquired regarding the amount of corn left and plaintiff replied, 10 to 15 bushels. Soon thereafter defendant, from his position in the crib, instructed plaintiff to elevate the corn on hand and pick up all the loose ears around the elevator because it would have to be reset. Defendant had in the crib with him the only scoop shovel available for picking up the ear corn which was under the power take-off assembly. In carrying out defendant's orders plaintiff stooped and reached under the revolving power take-off shaft. With his hands full of corn, plaintiff straightened up and as he did so his clothing was caught by fittings on the revolving shaft. He was thrown through the air and suffered serious bodily injury.
The elevator in use had been purchased by Katz from a neighboring farmer about six years prior to Olson's accident. Both the machine and shaft shield were then in good condition. Since acquisition by Katz no one had ever been injured by the mechanism.
Plaintiff's witness, Norville J. Wardle, an agricultural safety engineer, stated the safety shield here involved was standard equipment on John Deere products from 1936 to about 1958. Since 1959, however, an improved all-enclosing shield has been available. On the same subject Harold Woollums, a John Deere dealer, testified (1) the company has never recalled the original shield, (2) parts are still made for it, (3) he had never before heard of an accident arising from use of the original when properly in place, (4) parts are available which, with some machine tooling and at relatively small cost, will convert the original to a new type guard.
Defendant's testimony discloses no one had every told him the shield on his machine was not adequately protective, and he lacked any knowledge regarding production or availability of a new shield.
Olson concedes the existing protective device was properly in place; it and the power take-off were in good working order, i.e., were not defective in any respect. He also knew the shaft rotated 540 times a minute, had worked with and was fully aware of the knuckle and injury causing connecting bolts, realized the inverted U shaped shield was open at the bottom, and recognized the existence of some peril in reaching under the revolving shaft if clothing should come in contact with it.
I. As stated in Dobson v. Jewell, 189 N.W.2d 547, 550 (Iowa 1971):
(Emphasis supplied).
II. It should be prefatorily noted, much of defendant's argument might conceivably support an affirmative defense of assumption of risk. See The Code 1966, Section 88.14. But that defense, still available in employer-employee tort actions, was neither pled nor an issue in this litigation. See generally Rosenau v. City of Estherville, 199 N.W.2d 125, 130--133 (Iowa 1972).
Defendant did, however, plead contributory negligence on plaintiff's part. But that relates only to mitigation of damages in the field of employer-employee tort law. See Iowa R.Civ.P. 97; Frederick v. Goff, 251 Iowa 290, 297--298, 100 N.W.2d 624 (1960). See generally 18 Drake L.Rev. 155, 156--162 (1969).
III. Also in Dobson, 189 N.W.2d at 552, this court declared:
'There is an obligation on the master or employer to use reasonable care and diligence to provide and maintain a reasonably safe place for his employees to work. It is both statutory and by judicial pronouncement. Van Aernam v. Nielsen, 261 Iowa 1115 at 1122, 157 N.W.2d 138 at 143 and authorities cited.
'Speaking of the duty of the master or employer to furnish his employee reasonably safe instrumentalities with which to work, we said in Kregel v. Kann, 260 Iowa 1330, 1333--1335, 152 N.W.2d 534, 536--537:
'* * *
See also Bengford v. Carlem Corporation, 156 N.W.2d 855, 863 (Iowa 1968).
And as aptly stated in Kregel v. Kann, 260 Iowa 1330, 1335, 152 N.W.2d 534, 537 (1967): 'Until we have a law such as Workmen's Compensation applicable to farm employment there is no absolute liability of the employer for injuries to his employee.' See also 13 S.D.L.Rev. 1 (1968).
IV. We now turn again to the testimony of Norville J. Wardle, called as a witness for plaintiff. At close of a lengthy hypothetical question inquiry was made as to whether, based thereon, he had an opinion regarding cause of the accident. Defendant's attorney then interposed this objection:
With trial court's permission the witness answered affirmatively. When asked to state that opinion defense counsel renewed the above objection, which was overruled. Thereupon Mr. Wardle stated: 'Well, my opinion of this is as the result of my experience and study of this area, that the accident and injury resulted because the safety guards that are available were not used.'
Defendant's attorney then moved the answer...
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