Starnes v. Stofferahn, 10393
| Decision Date | 24 July 1968 |
| Docket Number | No. 10393,10393 |
| Citation | 83 S.D. 424,160 N.W.2d 421 |
| Parties | Lester STARNES, Plaintiff and Respondent, v. Ed H. STOFFERAHN, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellant.
Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiff and respondent.
This is an action for damages resulting from personal injuries sustained by plaintiff when he came into contact with the revolving power equipment connecting the mechanism of a self-unloading wagon and a tractor equipped with a power take-off.
Plaintiff in his complaint as amended during the trial alleges that on October 8, 1965, he together with defendants and four other farmers residing in the same neighborhood was engaged in a joint enterprise, that is, in the filling of silos upon their farms; that defendant, Ed H. Stofferahn, entered into an agreement with these persons whereby he leased a silage blower, a field cutter and four self-unloading wagons at an hourly rate of ten dollars; that defendant owner was negligent in failing to install shields or guards over the revolving shafts connecting the power take-off and the unloading mechanism of the wagons and in knowingly furnishing a self-unloading wagon which was in a dangerous condition by reason of a protruding set screw which was longer than necessary or usual in the universal joint at the wagon end of the drive shaft; that while plaintiff was assisting in unloading this wagon which was not properly equipped as set forth a gust of wind blew him against the revolving power equipment and his clothes became entangled thereon; and that he suffered serious injuries including the loss of his left arm.
The separate answer of defendant Ed H. Stofferahn admits occurrence of the accident, denies that he was negligent and as affirmative defenses alleges that negligence of the plaintiff either in whole or in part was the direct and proximate cause of his injuries, and that plaintiff voluntarily placing himself in a position of danger and peril assumed the risk of injury. During the trial the action against defendant Kenneth Stofferahn was dismissed on motion of the plaintiff.
After the parties rested defendant moved for a directed verdict. He stressed the grounds that the evidence failed to disclose any relationship between the parties which gave rise to a duty which was breached by defendant in connection with the ownership and the operation of the equipment involved in the action; that there was no evidence of any negligence on the part of the defendant which was not equally participated in by the plaintiff; and that the evidence established contributory negligence or an assumption of risk on the part of the defendant. The trial court denied the motion and submitted the case to the jury on the theory that one leasing equipment to another, and aware of the intended use thereof, is required to exercise reasonable care to ascertain if the equipment is in working order and safe for such use. The jury returned a verdict for the plaintiff in the amount of $27,329.63. The Court denied motion for judgment notwithstanding the verdict and defendant appealed.
Defendant had for eight or more years preceding the accident leased the implements mentioned to a group of farmers, including the plaintiff, who exchanged work in the filling of their silos. Payment was made by each of them on the basis of the time that the leased implements were used on his farm. The implements and equipment involved consisted of the self-unloading wagon and a farm type tractor. The tongue by which the wagon was drawn was about six feet in length and was hitched to the draw bar at the rear of the tractor. The power take-off included a shaft projecting from the housing of the tractor which was twelve or more inches above the draw bar. The power take-off was coupled by a universal joint to a square drive shaft consisting of two sections of different dimensions telescoping into each other. The unloading mechanism of the wagon was coupled to the end of the drive shaft by a universal joint.
There was a cogwheel at each of the four corners at the bottom of the wagon box and over the two cogwheels on each side was fitted an endless chain. Between these chains were corssbars attached thereto which moved the contents of the wagon to the rear when the power take-off was engaged. When a load of silage was brought from the field, the wagon was positioned with the endgate above the hopper of the blower. The power to move the chains and crossbars was engaged by a lever at the rear of the wagon. There was a bracket at the upper lefthand corner of the front of each wagon. It was customary after unloading a wagon and before returning to the field for another load to disconnect the drive shaft and its connecting universal joints from the tractor and place it in the bracket.
When defendant purchased the wagons, each was equipped with a removable shield for use over the drive shaft and the universal joint connecting it and the unloading mechamism of the wagon. During the eight years that plaintiff and the farmers had operated the leased equipment the shields supplied by the manufacturer had not been used. The set screw mentioned which projected one half inch from the universal joint was a replacement. The original one was nearly flush with the universal joint.
Plaintiff testified that he was 50 years of age, had farmed since 1947 and had owned and operated tractors and power machinery ordinarily in use on farms. On the day of the accident plaintiff was engaged in hauling silage from a field to a silo on the farm of Dean Becker. Plaintiff recalls positioning his tractor and wagon for unloading, connecting the power shaft to the tractor, starting the power take-off, entering the wagon over the front end for the purpose of pushing silage over the moving crossbars and leaving the wagon backwards with his left foot next to the power take-off equipment when the accident occurred.
The silos on the several farms were filled each year in about twelve days. Plaintiff estimated that he hauled each day about 14 or 15 loads of silage. Plaintiff admitted that he was aware that the exposed universal joint and drive shaft while in operation were dangerous and that injury could result if his clothing came in contact with the revolving mechanism.
Dean Becker and his wife were at the scene of the accident the following morning. They testified that the drive shaft and connecting universal joints had been disconnected from the tractor, that there were shreds of clothing on the ground below the place 'where the set screw would have been' and extending over a space of about 18 inches from the universal joint at the wagon end there was clothing tightly wrapped around the drive shaft.
The relation here was that of bailor and bailee. In general, it may be said that a bailor supplying for hire a chattel for the use of another is bound to exercise ordinary and reasonable care to make it safe for the use for which it is supplied. See cases collected in a series of annotations in 12 A.L.R. 774, 61 A.L.R. 1337, 131 A.L.R. 845 and 46 A.L.R.2d 404. The applicable principles are thus stated in Restatement of Torts, § 388:
'One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the...
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Lovell v. Oahe Elec. Co-op.
...more than slight, it is the function of the trial court to hold, as a matter of law, for the defendant. Starnes v. Stofferahn, 83 S.D. 424, 432-33, 160 N.W.2d 421, 426 (1968). The comparison is made with the negligence of the defendant, rather than with the ordinarily prudent person. Crabb ......
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Nelson v. Nelson Cattle Co.
...can find for the defendant as a matter of law. Westover v. East River Elec. Power, supra, 488 N.W.2d at 896; Starnes v. Stofferahn, 83 S.D. 424, 160 N.W.2d 421, 426 (1968). However, we agree with the trial court and hold that the actions of Milton Nelson do not amount to contributory neglig......
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Schmidt v. Royer
...may be decided as a matter of law. See Lovell v. Oahe Elec. Coop., 382 N.W.2d 396, 399 (S.D.1986) (citing Starnes v. Stofferahn, 83 S.D. 424, 432-33, 160 N.W.2d 421, 426 (1968)). However, "[i]t is only when the facts show beyond any dispute that plaintiff has committed negligence more than ......
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Treib v. Kern
...for the circuit court and this court to hold, as a matter of law, for Treib. Westover, 488 N.W.2d at 896 (citing Starnes v. Stofferahn, 83 S.D. 424, 160 N.W.2d 421 (1968)). It is not a function of an appellate court to weigh the evidence and substitute its judgment for that of the jury. Id.......