Stevens v. Allis-Chalmers Mfg. Co.
| Decision Date | 06 April 1940 |
| Docket Number | 34545. |
| Citation | 100 P.2d 723,151 Kan. 638 |
| Parties | STEVENS v. ALLIS-CHALMERS MFG. CO. et al. |
| Court | Kansas Supreme Court |
Rehearing Denied May 10, 1940.
Syllabus by the Court.
When several acts of negligence are treated as basis of action for damages and jury makes a special finding of particular act or acts of negligence of which defendant was guilty, such special finding amounts to acquittal of defendant of any other acts of negligence alleged.
A farmer of many years' experience in handling farm implements, who was injured by coming into contact with revolving universal joint of shaft delivering power from tractor to combine, when he reached across shaft to control power though he could have controlled the power in another safe and usual manner, acted at his own risk and could not recover from manufacturer of the machinery for negligence in failing to equip shaft with protective device.
It is common knowledge that injuries frequently occur in operation of mowers, binders, threshers, tractors, corn shellers, hay loaders, and many sorts of geared tools.
Generally manufacturer or seller of article is not liable in negligence to one with whom he has had no contractual relations, unless the article was inherently or imminently dangerous.
In farmer's action against manufacturer of farm machinery for injuries suffered when reaching across whirling universal joint to control power, though there was another means of controlling power, manufacturer was entitled to instruction that where there is a safe and usual way of doing some act it is plaintiff's duty as a reasonable, careful and prudent person to pursue that course rather than risk the danger of doing it a more hazardous way.
1. Rule followed that when several acts of negligence are pleaded as the basis of an action for damages and the jury makes a special finding of the particular act or acts of negligence of which defendant was guilty, such special finding amounts to an acquittal of defendant on any other acts of negligence alleged in plaintiff's petition, following Roberts v Missouri, K. & L. Railway Co., 98 Kan. 705, 161 P. 590.
2. In the absence of a special contract a manufacturer of farm machinery and its equipment, not inherently defective, is ordinarily not liable for injuries sustained by the user.
3. Where there is a safe and usual method of controlling the power delivered from a farm tractor to a harvester-threshing machine, but the operator thereof sought to control it by a manifestly dangerous and unusual method and was injured in so doing, he did so at his own risk, and the manufacturer of the equipment is not liable in damages therefor.
4. The plaintiff, a farmer of many years' experience in handling farm implements including tractors and threshing machines was injured by coming in contact with a revolving universal joint of a shaft which delivered power from a tractor to a combined harvester-thresher. Held under the evidence summarized in the opinion plaintiff had no cause of action against the defendant manufacturer.
Appeal from District Court, Cherokee County; Vernor J. Bowersock, Judge.
Action by E. O. Stevens against the Allis-Chalmers Manufacturing Company and others, for injuries suffered by coming into contact with whirling universal joint on farm machinery. From a judgment on a verdict for plaintiff, named defendant appeals.
Reversed with instructions.
In farmer's action against manufacturer of farm machinery for injuries suffered when reaching across whirling universal joint to control power though there was another means of controlling power, manufacturer was entitled to instruction that where there is a safe and usual way of doing some act, it is plaintiff's duty as a reasonable, careful and prudent person to pursue that course rather than risk the danger of doing it a more hazardous way.
Austin M. Cowan, C. A. McCorkle, W. A. Kahrs, and Robert H. Nelson, all of Wichita, and Al. F. Williams, Don. H. Elleman, and Paul H. Elleman, all of Columbus, for appellant.
Marc. Boss and Fred A. Walker, both of Columbus, for appellee.
This was an action for damages for injuries plaintiff sustained by coming in contact with a whirling universal joint which was part of a "take-off" shaft for delivering power from a farm tractor to a small harvester-thresher familiarly known as a "combine".
The take-off shaft was attached to the tractor machinery for the reception of its power and was attached to the combine for the delivery of its power. The tractor was hitched to the combine by the common sort of device needless to explain. the take-off shaft was situated a few inches above the hitching device. It was about 8 feet long, composed of four pieces of heavy 2-inch tubing joined together by three universal joints. The latter were necessary to give the take-off shaft the requisite flexibility to permit its steady delivery of power to operate the mowing and threshing machinery of the combine as the outfit moved around the harvest fields.
Of the three universal joints which were component parts of the take-off shaft the one nearest the combine was so placed that there was no danger of a person coming in contact with it. The one nearest the tractor was guarded by a cover of metal sheeting. The middle universal joint was in open and plain view between the tractor and the combine and was not guarded.
Within easy access of the driver's seat on the tractor were devices for engaging or releasing the power which operated the machinery of the combine. The device on the right-hand side of the driver's seat was a knob and ratchet contraption which was not working well. It would release the power readily by a slight pressure on the knob, but when released it was quite bothersome to get it to reengage the power.
On the left-hand side of the driver's seat was a lever which operated by hand or foot and served the same purpose. Because of the defective condition of the right-hand releasing device plaintiff commonly used this left-hand lever to control the operation of the combine machinery.
In 1937 plaintiff and his son-in-law were engaged in farming. Plaintiff owned a tractor and in June of that year he purchased through a local firm of implement dealers a 5-foot Allis Chalmers combine and take-off shaft and thus equipped he set about the harvesting of his own and his neighbors' crops of oats and barley.
After a few days' use of the new combine with its take-off shaft and the tractor motive and operating power, on the evening of July 6, 1937, plaintiff stopped at a corner of a field to discharge the threshed grain carried by the combine into a waiting farm truck. The operating machinery of the combine continued to run. Plaintiff dismounted from the tractor and got on the right-hand side of the outfit. Desiring to stop the running machinery of the combine he stepped close to the second universal joint of the take-off shaft, and reached over it to get a hold of the left-hand lever to disengage the power-drive machinery. In so doing his clothing caught in the rapidly whirling universal joint, and he was severely and variously injured.
Plaintiff testified that on July 6, he had been "combining" oats, and
On cross examination he testified:
[Counsel for defendant] "Q. You mean you were standing on the right hand side? A. Right hand side.
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