O'Reagan v. Daniels

• Decision Date: 14 November 1950
• Docket Number: No. 47668,47668
• Citation: 241 Iowa 1199,44 N.W.2d 666
• Parties: O'REAGAN v. DANIELS.
• Court: Iowa Supreme Court

Page 666

44 N.W.2d 666

241 Iowa 1199

O'REAGAN v. DANIELS.

No. 47668.

Supreme Court of Iowa.

Nov. 14, 1950.

H. J. Williamson, of Manchester, and Elliott, Shuttleworth & Ingersoll, of Cedar Rapids, for appellant.

Thomas H. Tracey, William W. Gilkey, and Yoran & Yoran, all of Manchester, for appellee.

BLISS, Justice.

The facts in this case are not in dispute in any material matter.

Plaintiff, 54, had worked for defendant in his lumber yard, and on his farm, for about six years. In May, 1946, defendant directed the plaintiff to help defendant's daughter, Gwen Daniels, and Joe Penado, another employee of defendant, to haul baled hay to the barn on defendant's farm, and to hoist and store it in the haymow of the barn. The barn had gable ends. In the east end of the barn a large door opened into the haymow. This door was six-feet wide and extended to the upper angle of the gable. The sill at the bottom of the door opening was eighteen feet above the floor of the haymow. At that end of the mow the floor was bare and free of hay. Attached to the door sill on the inside was a narrow platform, the width of the door. A sort of catwalk. It was about eighteen inches wide in the middle and tapered to a width of six or eight inches at each end. To reach the door sill from the the mow floor there was a ladder made by nailing cross-pieces between and to two studs. The equipment for hoisting the hay was similar to that commonly used in farm barns for that purpose. The hay fork was attached to the lower end of a rope which extended upward to, and over, a stationary pulley in the upper angle of the gable just above a trip at the east end of a track which extended horizontally just under the ridge of the roof to the other end of the haymow.

The hay was hauled in a flat open truck to beneath the haymow door. Plaintiff's normal work was on the floor of the mow, and, when the equipment was working properly, his duties consisted in seeing that the hoisted bales were properly piled in the haymow. Penado would stick the prongs of the fork into the bales of hay, and then signal Gwen Daniels, who was operating another truck with the other end of the rope attached to its rear end, and running through other pulleys, to drive forward and hoist the loaded fork to the haymow door, where it would enter the trip and the track and be drawn back into the haymow.

The difficulty with the process was that when the fork began to rise the rope between the fork and the pulley above would often twist and kink and would not pass through the pulley. When this would happen 'the girl had to stop or else the rope would break or a pulley would tear loose.' When the rope became tight and taut behind the truck she would know the rope was jammed. Sometimes she would continue forward and the rope would untwist and go through the pulley, but sometimes it would not. She would then back the truck and lower the loaded fork and in whirling as it descended the rope would untwist, and then by going forward the rope would sometimes pass through the pulley, but more often the rope would again twist and kink. It was then the plaintiffs duty to climb to the catwalk and whirl the loaded fork until the rope would untwist and unkink and go through the pulley. For these occurrences when the rope would jam, a four-foot stick was kept near by to aid in twirling or whirling the loaded fork, but if the load was stalled high near the pulley, the stick was of little help and it was necessary for plaintiff to stand on the catwalk and untwist the rope by whirling the fork load with his hands. When the rope unkinked the tension of the taut rope itself would sometimes pull the fork into the trip and the load would suddenly swing through the door, and unless the plaintiff was watchful and active he was in danger of being struck. The stick was not about on the day of plaintiff's injury.

There is no controversy over the facts stated above or those which we now state. The jury could have found, and there was no evidence to the contrary, that this rope was defective with respect to twisting and kinking from the time it was purchased in July, 1945. They had trouble because of its twisting during the hay season that year. Plaintiff testified: 'Ed (Mr. Daniels) went down and bought the rope * * * and put it in the barn. It kept twisting and Ed took it out, and we pulled it around the field behind the car--tied the rope behind his automobile. I rode along with him. He was driving. He did it to keep it from twisting and to take the kinks out of it. He (defendant) was there when the rope twisted that year. After he had dragged the rope around we put it back in the barn.

'Q. Was it all right then? A. Mr. Daniels told me to take it out and turn it end to end but it didn't make any difference.

'Q. It still wasn't any good? A. No.

'Q. What was wrong with it? A. Twisted just the same.

'Q. Did you continue to use it? A. Yes, we kept on using it.

'Q. It did jam on occasion? A. Yes.'

Speaking of the day of his injury, in the latter part of May, 1946, plaintiff testified: 'This was the first day we used the hay rope this year and the rope was the same rope and in the same condition as it had been the year before. * * * On the first truck load,--about sixty bales--, which we put in, the rope twisted twice and the rest of the time on the first truck load the rope didn't twist so I had to go up and untwist it. * * * Each fork full carried four bales. When the rope would twist and jam so that it would not go through the pulley I went up and untwisted it. The rope would have a tendency to twist every time but some times it would untwist itself. When the rope jammed I went up and untwisted it by reaching for a bale and twisting it around with my hand or a stick. It was only necessary for me to climb to the platform twice on the first truck load of bales. We got another truck load of bales. * * * On the first fork full of this second truck load of bales the rope twisted and jammed in the pulley and I climbed to the platform and untwisted the rope. When I untwisted the rope the fork and the bales pulled up to the carrier track and into the barn and hit me and knocked me off. Before I got away it was pulled in and caught me on the platform.'

On cross-examination plaintiff testified: 'At the time of the accident I had been sent up there to work by Ed Daniels. He said to go and put the hay away back in the west end of the barn like I always did. * * * Mr. Daniels got the new hay rope in July before the accident. * * * We had trouble with the fork at that time. Just how many fork fulls twisted in July I wouldn't say, but pretty bad. One night putting up hay pretty near every one of them twisted. * * *'

'Q. Well, was that the only way that had been used to get the bales in when the fork twisted? A. That's right.

'Q. That the only way it could be done was to go up and stand in the middle of the door way? A. That's right.'

Plaintiff testified that he had a stick sometimes and sometimes used his hands, and that it wasn't possible to straighten out the fork full in any other way; that he had got up on the middle of the platform fifty times or more to untwist the rope.

'Q. And you were right in the middle of the platform? How did you get out of the way? A. Walk out if I had a chance.

'Q. Every other time you got out of the way? A. Yes.

'Q. A fast or slow walk? A. Sometimes you would have to move, and sometimes you would have lots of time.

'Q. Going up there and standing that way facing a fork load of bales and knowing that as soon as the twist got out of the rope the carrier would trip, didn't you feel that there was some danger there? A. As soon as it tripped it was right in.

'Q. Didn't you feel there was danger there? A. Sure there was danger there.

'Q. Didn't you feel the fork might hit you and knock you off the platform? A. Sure I knew it would. * * *.

'Q. You did not object to doing it? A. No, but I told them it was dangerous having that rope running that way.

'Q. And at the time of the accident you scrambled up and got in the middle of the platform again? A. Sure, to get the twist out of the rope.

'Q. You knew if they would just hold up and let the fork down the thing would untwist itself? A. Yes, but when it would come up it would twist again.

'Q. You knew it wasn't necessary to get up there to untwist it? A. You had to get up there.

'Q. State whether the proper way was to let the fork down and let it untwist itself? A. Yes, yes. But when it come up it would twist again.

'Q. Would it always twist? A. I said yes.

'Q. Did you try that? A. Yes.

'Q. And it always twisted when it came up again? A. Yes.

'Q. Sometimes a load would come up without twisting. A. Yes.

'Q. But when it once twisted and was let down and hauled up again it always twisted again? A. Yes.'

Joe Penado testified that when he and the plaintiff were leaving in the truck on the day of the injury, the defendant said to him: 'Come up and help him put that baled hay in the barn. He might have trouble with that rope. We had trouble the year before.

'Q. He warned you before you went out? A. Yes. He said they had trouble the year before. I wasn't here the year before.'

Speaking of what took place during the morning of plaintiff's injury, Penado testified: 'The rope twisted twice on the first truck load. Sometimes the rope would twist and not jam and sometimes it would not always come back. It would sometimes jam in the pulley and wouldn't go up or down and we would have to untwist it. If you couldn't reach it with a stick, you had to touch it with your hands and you couldn't do a very good job of untwisting from the side. You had to stand in the middle and run. The girl driving the truck was forced to stop when the rope twisted or jammed. She could see the rope, and the wheels would stop and kill the motor if the rope jammed. After the tight rope untwisted, it would go right into the barn. When it untwisted, the...