Price v. McNeill

• Decision Date: 15 October 1946
• Docket Number: 46868.
• Citation: 24 N.W.2d 464,237 Iowa 1120
• Parties: PRICE v. McNEILL et al.
• Court: Iowa Supreme Court

24 N.W.2d 464

237 Iowa 1120

PRICE v. McNEILL et al.

No. 46868.

Supreme Court of Iowa

October 15, 1946

Prichard & Prichard, and John D. Beardsley, all of Onawa, Neal E McNeill, of Tulsa, Okl., for appellants.

William P. Welch, of Logan, and Underhill & Underhill, of Onawa for appellee.

MULRONEY Justice.

Marvin Price a farmer about 40 years old, worked for the defendants on their farm during the year 1944 at a salary of $100 a month plus other consideration to be furnished by defendants. On December 2d of that year, while operating a John Deere tractor and ensilage cutter, he suffered injuries resulting in the loss of his left arm. He brought suit against the defendants alleging negligence on their part (1) 'in directing and requiring the plaintiff to operate the John Deere Tractor at a time when the clutch thereon was defective and improperly working, and unsafe for the plaintiff to operate, which fact was well known to the defendant * * *,' (2) 'in directing and requiring the plaintiff to operate the tractor and ensilage cutter with a tumbling rod that was not equipped with a guard or shield over the knuckle * * * which fact was well known to the defendants * * *', (3) 'in directing and requiring the plaintiff to operate said tractor and ensilage cutter equipped with a tumbling rod that had two bolts therein, directly behind the knuckle below the driver's seat on the tractor which extended from said rod a distance of 1 1/2 inches more than was necessary or usually and ordinarily used; all of which facts were well known to the defendants. * * *'

The petition alleged that defendants' negligence was the proximate cause of his injury and sought judgment against the defendants for $40,000. The jury returned a verdict for $6,000 and defendants appeal alleging the trial court erred: '(a) in not sustaining defendants' motion for directed verdict at the close of plaintiff's evidence; (b) in not sustaining defendants' motion for directed verdict at the close of all the evidence; (c) in not entering judgment for the defendants notwithstanding the verdict and in refusing to grant a new trial; and (d) in not reducing the verdict.' This is not a proper assignment of error. It is much too vague to warrant our consideration of each and every ground contained in the motions that were not sustained. Hawkins v. Burton, 225 Iowa 707, 281 N.W. 342. Defendants' brief is in two divisions and in the first division defendants specify that the motions should all have been sustained because '(1) the plaintiff's evidence shows that the acts of the plaintiff himself were the proximate cause of his injury and (2) under the record made by plaintiff, he assumed the risk incident to the operation of the machinery in question, as a matter of law.' The other division deals with the question of the amount of the verdict.

We will proceed to discuss the two grounds in Division I of defendants' brief which are the only two reasons they argue why their motions in assignments of error a, b, and c should have been sustained. An abbreviated statement of the facts will suffice. The evidence favorable to the plaintiff showed that on December 4th the plaintiff and a fellow worker named Kettleson were ordered by one of the McNeills to go to a corn field and cut ensilage; that they were ordered to hitch the ensilage cutter to a John Deere tractor. There is a power hook-up on the tractor directly under the driver's seat and when plaintiff attempted to hook up the cutter to the tractor power hook-up he couldn't find all the necessary parts. Harold McNeill was called and he brought the attachment, consisting of a stub-shaft and knuckle, to the corn field. The plaintiff's testimony is that the stub-shaft and knuckle were connected with the protruding bolts of about an inch and a half, at the time Harold McNeill brought them out to the field. Plaintiff testified that he told Harold McNeill that he did not like to drive the John Deere tractor as he was unfamiliar with it and he understood from Kettleson and others who had driven it that it was in no shape for a man to operate and he asked where the guards were as he couldn't find them in the barn or the machine shop and they ought to be on there and he called Harold's attention to the two long bolts. He testified Harold replied that they only had to get two loads of ensilage for over Sunday that it was no use hooking up 'all that stuff' just for that and to go ahead and in a few days when the work was completed they could repair the machinery.

The evidence shows that when plaintiff and Kettleson attempted to operate the tractor and cutter it clogged up several times and they had to stop and pull the stalks out of the cutter. The clutch on the tractor regulated the power that operated the cutter so when the clutch lever was pushed ahead the cutter operated from the tractor power and when the clutch lever was pulled back the cutter would not operate. The plaintiff attempted to clean out the cutter by engaging the clutch with the tractor out of gear. His effort failed and he testified he pulled the clutch...