Schuh v. Fox River Tractor Co.
| Decision Date | 04 June 1974 |
| Docket Number | No. 308,308 |
| Citation | 218 N.W.2d 279,63 Wis.2d 728 |
| Parties | George R. SCHUH, Appellant, v. FOX RIVER TRACTOR CO., now known as F. R. Liquidating, Inc., et al., Respondents. |
| Court | Wisconsin Supreme Court |
Kersten & McKinnon, Milwaukee, for appellant; Charles D. Clausen, and George P. Kersten, Milwaukee, of counsel.
Nash, Spindler, Dean & Grimstad, Manitowoc, for respondents.
The plaintiff was assisting a neighboring farmer, Gordon J. Kohlbeck, in filling his silo with corn silage at the time he sustained his injury. The silage was brought from the field in a wagon equipped with a conveyor mechanism which transferred the silage from the wagon into the crop blower that blew the silage up into a silo, or in this case onto a pile since the silo had been filled. The crop blower is a machine which utilized an auger mechanism to move the silage from the hopper of the crop blower into its fan housing which contained a fan that thrust or blew the silage into the silo. The top of the hopper portion of the crop blower is practically square. The sides are slanted or tapered inward toward the bottom where an auger is located.
The power take-off mechanism on a tractor was the power source for the auger and the fan on the crop blower. A second tractor would pull a wagon of silage up to the crop blower. The wagon had a conveyor belt or 'apron' which carried the silage from the wagon into the hopper of the crop blower. The tractor for the wagon also was equipped with a power take-off assembly which provided the power to activate the conveyor assembly on the wagon. Thus, the two tractors providing the power to run the crop blower and the conveyor on the wagon were aligned adjacent to and parallel with one another.
Daniel Kiel, another of Gordon J. Kohlbeck's neighbors, owned the crop blower and some other equipment being used in the silo-filling operation. Kiel, George R. Kohlbeck (Gordon's father), and Arthur Vetting, were also assisting in the operation. During the course of the day, the men had experienced mechanical difficulties with the apron or conveyor belt on the wagon. The shaft driving the conveyor belt broke and had to be welded. After the shaft had been repaired, the chain had occasionally slipped off its sprocket during the course of the afternoon, thus stopping the conveyor. Plaintiff testified that each time he put the chain back on the sprocket with the aid of a screwdriver without much difficulty, and while standing on the ground. Shortly after 5 p.m., the conveyor had again malfunctioned. The plaintiff shut off the power take-off from the tractor to the conveyor wagon in order to repair it. He also pulled the clutch lever on the crop blower, which controlled the auger, but did not shut off the power take-off from the tractor to the crop blower. Thus, while the auger of the crop blower stopped, the fan continued to operate. Believing the chain on the wagon conveyor would go back into place by pulling it forward, plaintiff stood on the edge of the hopper of the crop blower and pulled on the chain of the conveyor in an attempt to take up the slack. He slipped from this position and his left leg was entangled in the fan and ultimately was amputated.
Plaintiff had worked with this crop blower for 2 1/2 days the previous year, and defendant produced evidence to establish at trial that plaintiff knew, or should have known, that the fan was still running when he pulled the clutch lever. Plaintiff denied that he knew it was still running.
Additional facts will be set forth when considering the issues presented on this appeal.
ISSUES.
The trial court granted the defendant's motion for a directed verdict for three reasons, any one of which is sufficient to require affirmance on appeal. The three reasons are:
(1) The crop blower was not defectively designed so as to render the defendant liable under strict liability in tort.
(2) The plaintiff was not reasonably using the crop blower for an intended purpose at the time of the injury.
(3) The contributory negligence of the plaintiff was at least equal to or greater than any negligence of the defendant as a matter of law. 1
The trial court supported its determination by a detailed analysis of the evidence.
We do not deem it necessary to again set forth the standards for a trial court to consider in its determination of a motion for a directed verdict or those of this court on review of decisions on motions for directed verdict. 2
In Wallow v. Zupan (1967), 35 Wis.2d 195, 198, 150 N.W.2d 329, 330, it was explained as follows:
'. . . On appeal this court will affirm a directed verdict unless the trial court is clearly wrong. . . .' Merz v. Old Republic Ins. Co. (1971), 53 Wis.2d 47, 56, 191 N.W.2d 876, 880.
DEFECTIVE MANUFACTURE.
In Howes v. Hansen (1972), 56 Wis.2d 247, 252, 253, 201 N.W.2d 825, 827, this court further considered the concept of strict liability in tort as it relates to the type of situations which are generally called product liability cases, and stated:
'In Dippel v. Sciano (37 Wis.2d 443, 155 N.W.2d 55), this court adopted the concept of strict liability in tort propounded in the Restatement:
'Strict liability is not absolute liability. Rather, it does aid the plaintiff by relieving him of proving specific acts of negligence and protecting him from the defenses of notice of breach, disclaimer and privity of contract. The plaintiff, according to Dippel, must yet prove:
". . . (1) that the product was in defective condition when it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was a cause (a substantial factor) of the plaintiff's injuries or damages, (4) that the seller engaged in the business of selling such product or, put negatively, that this is not an isolated or infrequent transaction not related to the principal business of the seller, and (5) that the product was one which the seller expected to and did reach the user or consumer without substantial change in the condition it was when he sold it.' (Emphasis supplied.)
'The concept of strict liability, as spelled out in the Restatement 402A and as adopted by this court in Dippel, was explained by Mr. Justice Hallows, now chief justice, in his concurring opinion:
"What we mean is that a seller who meets the conditions of sec. 402A, Restatement, (2) Torts 2d in Wisconsin is guilty of negligence as a matter of law and such negligence is subject to the ordinary rules of causation and the defense applicable to negligence."
In determining whether the plaintiff had presented evidence upon which the jury could conclude that the crop blower was unreasonably dangerous, the testimony of Dr. Norval Wardle and the plaintiff becomes important. Dr. Wardle is an agricultural safety engineer and qualified as an expert witness. He testified that he had closely examined the machine and the manner in which it operated. He also testified that a fundamental rule of agricultural design engineering, which was recognized by the industry when this machine was manufactured, was that a control should be located so as to suggest by its location and by its movement what it would accomplish. It was Dr. Wardle's expert opinion that the location of the clutch lever on the defendant's crop blower was misleading and contrary to this recognized rule. The injured plaintiff testified that he thought by pulling the clutch lever on the defendant's machine he would shut off the entire blower machine, both the auger and the fan, because the clutch lever was the only lever between the power source (tractor) and the machine.
When the clutch lever was pulled it was obvious that it controlled the auger because that mechanism was in plain sight and came to a stop. The fan, on the other hand, was not readily visible because it was enclosed by the fan housing. The fan would not come to an immediate halt even if the power to it was shut off, but plaintiff said he thought he had given the fan enough time to stop before he had stepped up onto the edge of the hopper. The tractors both continued to operate and according to plaintiff this, and the fact that he was preoccupied with repairing the wagon, prevented him from hearing the fan as it continued to run. The jury was entitled to believe this testimony.
Of the other manufacturers who produced crop blowers, nine had clutch levers which controlled the auger alone. None had clutch levers which controlled the fan. Dr. Wardle testified that all of these other manufacturers located the lever on the auger side of the fan housing, thus suggesting it would control only the auger, in accordance with the design engineering rule he had earlier explained. The expert testimony of Dr. Norval Wardle regarding the standard practice in the industry regarding the location of the clutch lever could be properly considered by the jury in determining whether the...
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