Spears v. Schantz
| Decision Date | 06 February 1952 |
| Docket Number | No. 6964,6964 |
| Citation | 246 S.W.2d 399,241 Mo.App. 879 |
| Parties | SPEARS v. SCHANTZ. |
| Court | Missouri Court of Appeals |
C. A. Powell, Dexter, Stephen Barton, Benton, for appellant.
Joe Welborn, R. Kip Briney, Bloomfield, D. W. Gilmore, Benton, for respondent.
This is an action for damages for personal injuries sustained in the operation of a tractor while engaged in the making of a sharecrop by plaintiff on lands of defendants in Stoddard County, Missouri. The suit was filed April 13, 1949, in the Circuit Court of Stoddard County, transferred, on change of venue, to Scott County, Missouri, where it was tried before a jury, resulting in a verdict against defendant, George Schantz, on the petition for $3,000.00 and a verdict for $275.00 in favor of defendant, George Schantz, on defendant's counterclaim. From the judgment on this verdict, defendant, George Schantz, appealed.
The petition is grounded upon acts of primary negligence on the part of defendant, George Schantz, as follows:
'(a) In wrongfully and negligently failing to provide a reasonably safe place for the plaintiff to work as the servant of the defendants.
'(b) In wrongfully and negligently failing to provide reasonably safe tools and machinery with which plaintiff should perform his duties as the servant of the defendant.
'(c) In wrongfully and negligently permitting the aforesaid tractor to be operated with the cover and housing and shield removed from the aforesaid pulley shaft and cotter pin.
'(d) In wrongfully and negligently placing and leaving the aforesaid gear mechanism in an 'in gear' position while said housing and cover and shield was removed from the aforesaid pulley shaft and cotter pin.
'(e) In wrongfully and negligently ordering the plaintiff to start the motor of said tractor, while the aforesaid cover, shield, and housing was removed, and while said gear mechanism was in an 'in gear' position.
'(f) In wrongfully and negligently failing and refusing to warn the plaintiff of the 'in gear' position of the said gear mechanism, and of the fact that the cover, housing and shield was removed from the said pulley shaft and cotter pin.'
The court directed a verdict for defendant, Bertha Schantz, and, since there was no appeal from the action of the court in this matter, we will not set out the pleadings as to her.
Defendant, George Schantz, filed an answer and counterclaim. In the answer it was admitted that defendant was owner of the land in question and was the sole owner of the Massey-Harris tractor and that said tractor was equipped with a pulley shaft which revolved while a certain mechanism was in gear position and the tractor motor running. The answer admitted that the pulley shaft was so constructed that in the end of the shaft a cotter pin protruded and revolved when the pulley shaft revolved. It admitted, on the day of the injury, May, 1948, while plaintiff was working on said tractor, that the pulley was not on the pulley shaft and that the cotter pin was, at the time, in the end of said shaft and there was no guard or protection over said shaft. The answer admitted that plaintiff, at the time of the injury, proceeded to start the motor of the tractor while the gear mechanism was in an 'in gear' position and that the shaft and cotter pin commenced to revolve when the motor was started.
The answer denied all of the other allegations in plaintiff's petition. The answer then stated that during the year 1948, and for three years prior thereto, plaintiff lived in the house located on defendant's land where said sharecrop was being made; that, prior to 1948, plaintiff paid rent for the use of said house and did mechanical work in different garages; that plaintiff was a skilled mechanic and was experienced in farming. The answer then pleaded that in March, 1948, this defendant and plaintiff entered into a sharecrop agreement whereby plaintiff agreed to plant approximately 20 acres of land belonging to defendant and wife to cotton and plaintiff was to perform all labor in connection with the planting, cultivating and harvesting of said cotton and was to receive one-half the proceeds therefrom; that defendant was to furnish the seed, tractor and equipment used in the planting and cultivating of said cotton; that the tractor furnished plaintiff was one kept on the farm during the time plaintiff lived in defendant's house; that plaintiff was familiar with the tractor and the use and operation thereof; that he had used the tractor prior to the accident in question; that several days before the accident plaintiff and defendant had removed the pulley from the pulley shaft and attached cultivator gangs to said tractor and that, at that time, plaintiff saw and knew that the pulley was not on the shaft and the guard covering the same was not thereon. The answer pleads that after the cultivator gangs were attached to the tractor plaintiff used it in bedding up the entire 20 acres of land he was to sharecrop, and then removed the cultivator gangs and attached a team planter to the tractor and used the same for placing fertilizer in the ground; that after the fertilizer was used plaintiff removed the fertilizer attachment and started to plant cotton with the planter attached to the tractor; that while the tractor was stopped and the gear mechanism was in an 'in gear' position, plaintiff, of his own volition and without instruction from defendant, stood on the right-hand side of the tractor in such a position that his clothing came in contact with the pulley shaft when he pressed the starter of the tractor causing the pulley shaft and cotter pin to revolve and from this plaintiff sustained his injuries. The answer then pleads that plaintiff could have as easily started the tractor from the left side or the rear thereof without coming in contact with the pulley shaft and would have avoided his injury. The answer pleads that plaintiff knew, at the time, that the tractor could be started from the left or rear thereof and that he knew or by the use of ordinary care could have seen and known that there was no guard on said pulley shaft and that said pulley shaft was running when the gear mechanism was in position. The answer pleads that plaintiff, by the use of ordinary care, could have seen and known that the gear mechanism was in an 'in gear' position.
The answer then pleads that whatever injury plaintiff sustained was due to his own negligence which directly caused or contributed to his injury; that whatever injuries plaintiff sustained were caused by the risks which he assumed in using the tractor.
It is unnecessary to state the counterclaim as there is no contention about the finding of the jury on this matter.
To avoid confusion, we will hereafter refer to respondent as plaintiff and to appellant as defendant, which position they occupied in the lower court.
Defendant, under points and authorities, states 18 separate assignments of error. Because of the length of each assignment of error, we will take them up in order in this opinion.
A brief statement of facts is necessary in the decision of the issues involved. The evidence on the part of plaintiff is to the effect that he was employed to sharecrop twenty acres of cotton in the year 1948 on the land of defendant and wife; that by the terms of the sharecrop agreement defendant was obligated to furnish land, machinery and seed for such crop and plaintiff was obligated to do the work necessary to make the crop; that, pursuant to such agreement, defendant furnished plaintiff a Massey-Harris tractor with power take-off mechanism attached. The testimony of plaintiff is that he was an automobile mechanic and had worked one time on the motor of this tractor but was wholly unfamiliar with the gear mechanism of the power take-off and the pulley shaft operated therewith. He admits that he had used the tractor for approximately five days in disking the cotton land, placing the fertilizer thereon and bedding the same up for cotton but denies that he knew, or had been informed, prior to his injury on the 3rd day of May, 1948, that the pulley shaft and the cotter pin in the end thereof was unguarded by a shield made therefor and that the pulley was off same. He testified that, being unfamiliar with the mechanism of the power take-off, he had not noticed the dangerous unguarded position of the pulley shaft while using the tractor and did not know that the pulley shaft revolved when the gear mechanism was in an 'in gear' position and the motor was running. He also, definitely, testified that at no time prior to his injury had he been warned that the pulley shaft and cotter pin was unguarded. He testified he had broke down the cultivator before attaching the planter but did not see this pulley shaft. He testified that in putting the cultivator on the tractor to bed up the land that defendant had removed the pulley from the shaft and placed the cotter pin therein. He testified that on the day of the injury he and the defendant attached a team planter to the tractor and the power take-off; that they tried the planter at the garage, which was located on defendant's land where he kept all of his machinery, about a quarter mile from the cotton field; that defendant then raised the planter and fastened it up with the power take-off, turned it over to him and he drove it to the field; that defendant and plaintiff's son drove to the field in defendant's truck; that at the field plaintiff turned the tractor over to the defendant, who drove it 25 or 30 feet, testing whether a board, which they had placed in the planter to drag the clods off the ridges, would work; that the board did not work and defendant got off the tractor after he stopped the motor and left the power take-off in an 'in gear' position, which action of defendant, plaintiff had no knowledge; that in order to remove the board from the planter defendant directed plaintiff to start the motor; that he did not...
To continue reading
Request your trial
-
Kirst v. Clarkson Const. Co.
... ... McCormack v. McNamee, Mo., 274 S.W.2d 272, 273(1) ... 4 State ex rel. Spears v. Hughes, 346 Mo. 421, 424, 142 S.W.2d 3, 5; Sakowski v. Baird, 334 Mo. 951, 956, 69 S.W.2d 649, 651; Yuronis v. Wells, 322 Mo. 1039, 1049, 17 ... at 109, 40 S.W.2d at 664; Missouri Public Service Co. v. Hunt, Mo.App., 274 S.W.2d 27, 31(6) ... 20 E.g., Spears v. Schantz, 241 Mo.App. 879, 246 S.W.2d 399, 409-410(13, 14); City of Gallatin ex rel. Dixon v. Murphy, Mo.App., 217 S.W.2d 400, 408-409(14); National Cash ... ...
-
Kerkemeyer v. Midkiff, 191
...freedom to contract. The law is well settled that each case must be determined upon the facts of that particular case. Spears v. Schantz, Mo.App., 246 S.W.2d 399, 406. In deciding the issue raised by plaintiffs under this allegation we must determine from the facts the objective of the unio......
-
Welch v. Sheley, 54070
...been suppressed on motion (State v. Burchett, Mo., 302 S.W.2d 9); and testimony of an implied admission of liability (Spears v. Schantz, 241 Mo.App. 879, 246 S.W.2d 399). The principle that evidence improperly admitted is presumed to be prejudicial (Holmes v. Terminal R.R. Ass'n, 363 Mo. 11......
-
Condos v. Associated Transports, Inc.
...also been distinguished on its facts. Pope v. St. Louis Public Service Co., Mo., 1960, 341 S.W.2d 123, 125(1, 2); Spears v. Schantz, 241 Mo.App. 879, 1952, 246 S.W.2d 399, 413. The result in Ziervogel has been called, 'an undue deference to form at the expense of substance'. 31 Mo.Law Revie......