Smith v. Massey-Ferguson, Inc.

• Decision Date: 28 October 1994
• Docket Number: INC,MASSEY-FERGUSO,No. 69,826,69,826
• Citation: 883 P.2d 1120,256 Kan. 90
• Court: Kansas Supreme Court
• Parties: Daniel SMITH, Appellee/Cross-Appellant, v., a Maryland Corporation; Massey-Ferguson Ltd., a Canadian Corporation; Varity Corporation, a Delaware Corporation; and Dean Stroberg, Defendants, and David Stroberg, Appellant/Cross-Appellee.

Page 1120

883 P.2d 1120

256 Kan. 90

Daniel SMITH, Appellee/Cross-Appellant, v. MASSEY-FERGUSON, INC., a Maryland Corporation;

Massey-Ferguson Ltd., a Canadian Corporation;

Varity Corporation, a Delaware

Corporation; and Dean

Stroberg, Defendants,

and

David Stroberg, Appellant/Cross-Appellee.

No. 69,826.

Supreme Court of Kansas.

Oct. 28, 1994.

Syllabus by the Court

In an action by the plaintiff for personal injuries allegedly sustained while employed as a farm laborer, the record is examined and it is held that the district court did not err in (1) submitting the question of assumption of risk to the jury; (2) its instructions to the jury on assumption of risk and comparative fault; (3) the admission of photographs; and (4) refusing to disclose the settlement agreement between the plaintiff and a defendant. It is further held that the jury verdict awarding damages for economic and noneconomic loss is supported by the evidence and does not shock the conscience of the court.

Norman R. Kelly, of Norton, Wasserman, Jones & Kelly, Salina, argued the cause and was on the briefs for appellant/cross-appellee.

Donald A. McKinney, of Michaud, Hutton, Fisher & Andersen, Wichita, argued the cause, and Donald S. Andersen and Chan P. Townsley, of the same firm, were with him on the briefs for appellee/cross-appellant.

ALLEGRUCCI, Justice:

Daniel Smith, plaintiff, brought this action against Massey-Ferguson, Inc., (Massey-Ferguson) the manufacturer of a combine; Dean Stroberg, his employer and owner of the combine; and David Stroberg (Stroberg), the son of Dean Stroberg. Before trial began, Smith entered into a settlement agreement with Dean Stroberg. Before any evidence was presented, he settled with Massey-Ferguson. The jury found and apportioned fault as follows: David Stroberg 60%, Massey-Ferguson 10%, Dean Stroberg 20%, and Daniel Smith 10%. The jury awarded Smith $534,138. Stroberg appeals from the verdict; Smith cross-appeals, arguing for changes in the instructions and the verdict form if the case is remanded. The case was transferred to this court pursuant to K.S.A. 20-3018(c).

On June 19, 1989, Daniel Smith's hands were injured in the moving parts of a Massey-Ferguson combine. On that day, he was driving the combine for the wheat harvest on land owned by Dean Stroberg. Smith reported to David Stroberg and received instructions from him about what tasks were to be performed, what equipment was to be used, and where the cutting would start.

At trial, Daniel Smith was 28 years old and worked as a carpet installer and cleaner at a store owned by his father. In 1984, he received an associate degree in technical education from the Hutchinson Community Junior College. While a student at the junior college, he learned of a job opening with the Stroberg farming operation in northern Reno County. He interviewed with David Stroberg and began working there part-time. He continued this part-time employment up to and even after his injury. Dean Stroberg paid Smith, and Smith considered himself to be employed by Dean Stroberg.

Dean Stroberg is the father of David Stroberg. Dean Stroberg was 74 at the time of trial. For 30 years he had manufactured cattle-handling equipment. He also raised cattle and grew alfalfa, wheat, corn, and beans on 3,000 to 4,000 acres.

At the time of trial, David Stroberg was 36. His residence was several hundred yards from the house where his parents lived. As a teenager, he first worked part-time for Stroberg Equipment Co., Inc., the cattle-handling equipment manufacturing company. In the early 1980's, he obtained from his father an ownership interest in the company. Also during the late 1970's and 1980's, David gradually developed and expanded his own farming operation. Until 1988, he was employed by Dean Stroberg at an hourly wage to do farm work. As David Stroberg's own acreage increased, his income from farm work for Dean Stroberg decreased. By 1989, he received no hourly wages from Dean Stroberg for farm work. He continued to be involved in the operation of Dean Stroberg's farm, as shown by his participation in the wheat harvest activities in June 1989.

Smith considered David Stroberg to be the active manager of Dean Stroberg's farming operation during his employment there. Three other men who had been employed by Dean Stroberg in his farming operation testified that they regarded David Stroberg as their day-to-day supervisor.

At the time of his injury, Smith's experience in and around farm equipment included operating Dean Stroberg's Massey-Ferguson combine on occasion every summer since 1984. One summer while he was in high school, Smith operated an Allis-Chalmers combine for a custom wheat cutter. At that time, he was trained to do routine servicing of the combine. In junior college, he was enrolled in a curriculum called "Agri-Power & Machinery," which included courses in operation, maintenance, and repair of hydraulic systems, small engines, air-conditioning systems, electrical systems, and farm machinery. He did not consider himself to be a trained mechanic as a result of his studies.

On the day he was injured, Smith was told by David Stroberg to prepare the combine to cut wheat. Smith testified that he greased the machine, started it up, and moved it away from the barn. He parked it, gave it a check inside the cab, and engaged the threshing unit. He climbed down from the cab to oil the chains and make an overall inspection. As he made his first turn around the left end of the header, his right hand was pulled into the pulley. He denied sticking his hand in or near the V-belt or pulley, but he had no explanation for how his hand got caught. Smith testified that the machine was eating away at his hand. At first he tried pulling on his right wrist with his left hand, and then he tried to grab the belt and remove it so he could pull his right hand out. He tried pulling, hitting, and pounding on the belt, and, in the process, his left hand got pulled in several times. In response to Smith's screams, David Stroberg got into the cab and shut off the machine. With the combine off, Stroberg rolled the belt backwards and freed Smith's hands.

Dean Stroberg drove Smith to the emergency room in Hutchinson, and Smith was taken from there to the hospital in Wichita by ambulance. Smith's recollection of the rides and treatment upon arrival is very sketchy. Dean Stroberg testified that on the way to Hutchinson, Smith repeatedly asked, "Why did I do it?" The doctor who saw Smith in the emergency room in Hutchinson testified that in answer to the question how he was injured, Smith said he was testing a belt on a combine. Smith's record from the hospital in Wichita contains the following history: " 'The patient is a 25 year old white male who, approximately 2:00 p.m. today, pounded his hands against the belt to get it moving on the combine and the belt then took his right hand into it as well as part of his left hand.' "

The orthopedic surgeon who treated Smith testified that Smith suffered serious and painful injuries to his hands, particularly his right hand. During the initial four-hour surgery, tendon lacerations were repaired, skin from his thigh was grafted onto his hand, shattered joints were pinned, and wounds were sutured. He again underwent general anesthesia a few days later in order to have his hands inspected and his dressings changed. At that time, infection had destroyed some of the skin grafts. About a month later, Smith was rehospitalized so that additional skin grafts could be made. On August 21, 1990, he underwent another skin graft and a surgical procedure designed to eliminate some of the contracture of scar tissue between his fingers. In December 1990, the destroyed tendon in his right index finger was replaced with a tendon removed from his foot. The doctor has suggested to Smith that an additional tendon graft and additional surgery for scar contracture be done. He placed Smith's right hand impairment at 38% and the left hand impairment at 2%.

Dr. Knapp, an agricultural engineer who had specialized in farm safety and accident prevention, testified for Smith as an expert witness. He testified that it is common, ordinary, and logical to oil the chains of a combine with the machine running and that he had done so himself. He also testified that part of preparing a combine for harvesting is to start it up "and to conduct a walk-around to make sure that the parts are running the way they're supposed to." He did not believe that Smith had intentionally touched the belt which caught his hand. Among the factors he considered in reaching his opinion was Smith's being left-handed. If Smith had been intentionally touching the belt, he likely would have been doing so with his dominant hand rather than with his right hand. It was Dr. Knapp's opinion that Smith's contact with the belt was inadvertent and that it occurred because a safety shield was missing.

There was no direct evidence of when or by whom the safety shield had been removed. Smith's hands were caught in the header part of the combine. The header was changed depending on what crop was being cut. Stroberg testified that Smith worked on the combine before the wheat harvest began on June 19, but Stroberg was the person who changed the reel on the combine the day before Smith's injury. Stroberg also testified that the shield was not replaced until a year after Smith's injury. The shield was in the machine shed before Stroberg replaced it.

Approximately two years after his injury, Smith took some photographs of the interior of the machine shed where several shields from the Massey-Ferguson combine were stored.

We first decide if the district court should have decided as a matter of law whether Smith assumed the risk of his employment rather than submitting the issue to the jury. In Tuley v. Kansas City Power & Light Co., 252 Kan. 205, Syl. pp 1-7, 843 P.2d 248 (1992), we said:

"The common-law assumption of...