Olson v. Katz, No. 54953

• Court: United States State Supreme Court of Iowa
• Writing for the Court: RAWLINGS; All Justices concur, except McCORMICK
• Citation: 201 N.W.2d 478
• Docket Number: No. 54953
• Decision Date: 18 October 1972
• Parties: Lester OLSON, Appellee, v. Ernest KATZ, Appellant.

Page 478

201 N.W.2d 478 Lester OLSON, Appellee,
v.
Ernest KATZ, Appellant. No. 54953. Supreme Court of Iowa. Oct. 18, 1972.

Laird, Burington, Bovard & Heiny, Mason City, for appellant.

Finley & Teas, Mason City, for appellee.

Page 479

Heard before and determined by the full bench.

RAWLINGS, Justice.

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

Page 480

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):

'Our review is on errors assigned. Rule 334, Rules of Civil Procedure. In considering the sufficiency of the evidence of defendants' negligence as against the motions for directed verdict and judgment notwithstanding the verdict, we view the evidence in the light most favorable to plaintiff. This is the effect of rule 344(f), par. 2, R.C.P. Ling v. Hosts Incorporated, 164 N.W.2d 123, 124 (Iowa 1969). It is likewise viewed when appeal is taken from judgment on verdict for plaintiff. We need consider only the evidence favorable to plaintiff whether or not it is contradicted. Miller v. Young, 168 N.W.2d 45, 51 (Iowa 1969).' (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:

"'It is a settled 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.' * * * (citing authorities)

"However, the employer is not an insurer of the safety of the tools, machinery or appliances, nor of the safety of the employee in using the instrumentalities furnished but is only liable for negligence. * * * (citing authorities)

"The employer must exercise reasonable care to eliminate dangers which are not the usual or ordinary incidents of the service when he has exercised such care. * * * (citing authorities)

"* * *

Page 481

"In determining whether the employer exercised reasonable care there is no absolute standard to which his conduct must conform. Although the employer's duty is to exercise reasonable care whether the work is comparatively safe or extremely dangerous, the duty becomes more imperative as the risk increases. * * * (citing authorities)

"While the duty of the employer to provide his employee with reasonably safe tools with which to work is owed alike to the young and old, skilled and unskilled, whether the employer has performed such duty depends in some degree on the experience, maturity, intelligence, and discretion of the employee. * * * (citing authorities).'

'* * *

'(W)here recovery is sought on the ground of failure of the master or employer to provide employees a safe place in which to work or safe appliances with which to do their work, the burden is upon plaintiff to establish that the place of work or instrumentalities were unsafe or defective because of the employer's failure to exercise the duty imposed upon...