Shatto v. Grabin

• Decision Date: 17 November 1942
• Docket Number: 46039.
• Citation: 6 N.W.2d 149,233 Iowa 46
• Parties: SHATTO v. GRABIN.
• Court: Iowa Supreme Court

6 N.W.2d 149

233 Iowa 46

SHATTO v. GRABIN.

No. 46039.

Supreme Court of Iowa

November 17, 1942

Messer, Hamilton & Cahill, of Iowa City, for appellant.

Ingalls Swisher and D. C. Nolan, both of Iowa City, for appellee.

OLIVER Justice.

Appellee Robert Shatto, a farm laborer, 31 years of age, was ordered by his employer, Mr. Quinlan, to assist in stacking hay upon a farm owned and operated by Roy Willey. Jerry Donda and appellant, Frank Grabin, a neighboring farmer, also assisted Willey in the work. The hay was placed upon the stack by an overshot haystacker owned by Mr. Willey. This stacker elevated the hay in a cradle, attached to the end of a frame, which was hoisted and lowered by means of a rope or cable running through blocks and pulleys.

Appellant operated a horse-drawn sweep rake, which gathered the hay from the field and pushed it upon the cradle as the cradle lay flat upon the ground. The stacker was operated by a team fastened to one end of the cable and driven by Mr. Willey. As the horses walked forward, pulling out the cable, the end of the frame and the cradle, holding 600 or 700 pounds of hay were slowly raised from a horizontal position on the ground to a vertical position at the side of the stack, and the hay in the cradle was automatically dumped upon the top of the stack. Then the frame and empty cradle were slowly lowered to the ground by the force of gravity which tended to keep the cable taut as the team was walked backward. A load from the stacker was dumped upon the stack every four or five minutes. Donda and appellee worked upon the top of the stack straightening the hay. When completed the stack was 20 feet high.

The cradle was standing about 2 1/2 feet from the stack and happened to be lodged on dead center. Donda and appellee crawled from the stack upon the cradle to be lowered to the ground. Thereupon appellant told Willey to back up the horses and said he (appellant) was going to give them a thrill. We quote from the cross-examination of appellant himself, "Q. You told Mr. Willey to back up the team and give some slack in the rope you were going to give them a thrill? A. Something like that."

Donda testified he exclaimed, "For God's sake don't do it." Appellee said, "Don't do it somebody will get hurt." Willey backed the team attached to the rope. The frame and cradle remained standing upright on dead center. With a grin upon his face, appellant walked over to the stacker and jerked or pulled the rope, thus moving the frame and cradle from dead center. The frame and cradle dropped and fell to the ground severely injuring appellee. Apparently, the part of the stacker which gave way was a log chain with which Willey had earlier in the day replaced a broken clevis which held one of the pulleys to the frame. Immediately after the accident appellant said, "I suppose it was my fault. I said to give them slack, give them a thrill."

The petition did not charge appellant with wilful or wanton misconduct. The case was brought upon the theory that he was guilty of negligence. It was tried upon that theory and will be so considered upon appeal.

I. Appellant assigns as error the overruling of his motion for directed verdict, based upon the asserted insufficiency of the evidence to show that his conduct was the proximate cause of appellee's injury; that such conduct was negligent and that appellee was free from contributory negligence. In considering said ruling the evidence will be viewed in the light most favorable to appellee.

Appellant sought to play a practical joke upon appellee and Donda by causing the cradle with the two men upon it to fall part of the distance to the ground. To accomplish this he did two things. First, he caused Willey to back his team and thus slacken the cable by which cradle and frame were to be lowered. The stacker happened to be lodged in a vertical position on dead center. In that position its weight rested upon the machine itself and was not supported by the cable. Therefore, when the team was backed there was no corresponding downward movement of the frame and cradle which would have kept the cable taut. Then appellant pulled the frame and cradle off dead center. This left them free to fall unchecked until the loose cable was taken up. Appellant apparently expected the fall would suddenly stop when the cable was jerked taut. There is evidence that the men on the cradle felt a jerk when it had dropped about 10 or 15 feet. Obviously, in falling even a relatively short distance the frame and cradle, carrying the two men, would develop considerable momentum, the impact of which upon the cable would subject various parts of the stacker to extraordinary shock and strain.

Immediately prior to the time the stacker crashed upon the ground, it had been used to elevate loads of approximately twice the weight of the two men and was apparently in good working order. The circumstances shown in evidence were sufficient to justify a finding that the forces put in play by appellant subjected parts of the stacker to extraordinary strain and shock, which caused it to break and fall to the ground. Therefore, the question of proximate cause was for the jury.

So, also, was the question of appellant's negligence. It was his duty to exercise such reasonable care to avoid injuring appellee as an ordinarily prudent person would exercise under like circumstances. This standard of care requires one to refrain from conduct reasonably likely to cause injury to others. Measured by the foregoing test, it cannot be said, as a matter of law, that appellant's conduct constituted reasonable care. Hence, it was proper to submit that question to the jury.

It is also clear that appellee was not guilty of contributory negligence, as a matter of law, in attempting to ride the cradle down. There was no ladder or other means of descent except by crawling down the stacker. This was the only stack upon which appellee had worked with this stacker. However, Donda, who was an experienced stacker, and some others had frequently and safely mounted and descended from other haystacks by riding upon this cradle. Whether appellee was guilty of contributory negligence in so doing is a proposition upon which reasonable minds might differ. Hence, it was a question for the determination of the jury.

II. The petition alleges appellant was negligent (1) in causing Willey to back the team and slacken the cable, (2) in pulling the cradle off dead center and starting it to descend with the cable slackened, (3) in causing the cradle to drop suddenly from an elevated position with appellee and Donda thereon, and failing to exercise reasonable care for the protection and safety of appellee and Donda when he knew they were in a position of peril. Appellant predicates error upon the submission to the jury of each of said three specifications of negligence. His principal complaint is that...