Thompson v. Dale, 5867

• Decision Date: 04 May 1955
• Docket Number: No. 5867,5867
• Citation: 59 N.M. 290,1955 NMSC 40,283 P.2d 623
• Parties: Roy THOMPSON, Plaintiff-Appellant, v. Lillard DALE and Thurman Dale, Co-Partners, d/b/a Dale Bros., Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 623

283 P.2d 623

59 N.M. 290

Roy THOMPSON, Plaintiff-Appellant, v. Lillard DALE and Thurman Dale, Co-Partners, d/b/a Dale Bros., Defendants-Appellees.

No. 5867.

Supreme Court of New Mexico.

May 4, 1955.

Rehearing Denied May 31, 1955.

Jack Underwood, Lovington, Whatley & Oman, Las Cruces, for appellant.

Robert W. Ward, Lovington, Neal & Girand, Hobbs, for appellees.

SADLER, Justice.

The appellant, who was plaintiff below, sought damages for personal injuries suffered while working as a farm hand for the defendants. At the close of his case, the trial court sustained a motion by defendants for a directed verdict in their favor and rendered judgment accordingly. It is to review such judgment that plaintiff prosecutes this appeal. The parties will be designated as they were below.

The defendants are brothers and at all material times were engaged as partners in farming and ranching in Lea County, New Mexico, under the firm name of Dale Brothers. The plaintiff, a farm and ranch laborer, was employed by them as a general farm hand at $40 per week, plus a house, utilities and a cow. While so employed on December 29, 1953, and engaged in performing the duties of his employment, namely, the grinding of alfalfa in a hammermill, he either slipped or fell thrusting his right arm into the moving blades of the hammermill completely severing the three large fingers of the right hand, and the tip of the thumb and of the little finger.

It was the plaintiff's contention that the fall and resultant thrusting of his right arm into the blades of the machine was due to the negligence of defendants in failing to provide him a safe place to work in that the platform on which he was required to work in feeding the hammermill was rough and uneven, containing loose boards and was covered with loose feed; that the platform lacked guards for plaintiff's protection and the hammermill was located near a leaky hydrant by reason whereof the platform and surrounding terrain became wet and muddy, slick and dangerous.

On the occasion in question, the plaintiff was engaged in grinding alfalfa for calf feed. He was using a John Deere Tractor for power and a Wetmore Clipper hammermill to do the grinding. The hammermill was located or mounted on skids and boards. It was placed only a small distance from a granary. Plaintiff was taking the hay from another workman standing on a nearby truck who clipped the baling wire and passed the hay to plaintiff who fed it into the mill. The blades then ground it and discharged it through the chute into the barn. There was also a pumphouse close by from which a drainage ditch ran and a hydrant protruding from the pumphouse from which water was leaking from time to time. Cotton pickers at work on the farm used this hydrant for their water which created a somewhat wet and muddy condition around the mill, so much so in fact that the plaintiff was compelled to wear overshoes while at work.

The slightly elevated platform on which the mill was located was made of loose boards of uneven length and rough from the hammermill being dragged around from place to place. But to give the picture as plaintiff described it in his testimony on direct examination. He testified:

'Q. What were your duties? A. To feed the mill.

'Q. Now, in order to feed that mill, where did you have to stand? A. Well, I started out on the west side of the mill, feeding from the west side, and then the wind was blowing awful hard--I mean it was really blowing. Well, the chaff and dust got so bad that I couldn't get my breath. I walked around to the east side which made me go to feeding at the right hand, and as I reached in there why that's when the accident happened. Just when I reversed my sides is when the accident happened.

'Q. All right. When you changed sides, where did you have to walk? A. I had to walk completely around the truck.

'Q. Now, this platform on which the mill was mounted, was it shoved up right against the granary so that the ground grain was being discharged into the granary? A. No, sir, the platform wasn't right up against the granary. It was, I'd say, around anywhere from 18 inches to two foot, from the end of the platform up against the barn.

'Q. Where was the ground feed being discharged? A. It was being discharged in the barn. It run through the chute which the mill shows.

'Q. Now, what was the condition of the ground around this mill? A. Well, it was wet, muddy.

'Q. Why was it muddy? A. Because we had had cotton pickers there, and it was a pumphouse and that's where they had to get their water, and the water naturally was used. Water drained in the ditch from that. Our mill was sitting right up on this drain ditch. In other words, you couldn't get to the mill. If you stepped off the mill, if you didn't step away back why you stepped in mud and water. If our mill was sitting in the truck, and you pulled that in there with the truck, why you had--you spun your wheels getting in or out, one.

'Q. Now, this water was coming simply from a hydrant sticking out the pump walls? A. That's right.

'Q. Did you say the cotton pickers there used it as a source of water? A. Yes, sir. That is true.

'Q. Now, moving from one side to the other, state whether or not you had to go through the mud? A.

Well, no, I could step over the mud, and did step over it, going around the other side of the truck.

'Q. Well, did you? A. Well, I had been in the mud getting up backwards and forwards on my side, in other words, on the west side of the mill.

'Q. Were your feet muddy and slippery when you climbed up on the other side of that mill? A. Yeah, my overshoes was wet.

'Q. Now, what was the condition of this platform? A. Well, it was rough, rough on there. I mean it had been drug around and shook up and then patched in two or three places.

'Q. Now, this picture here, Plaintiff's Exhibit '1', which shows these rough boards on one side of the mill, does that accurately portray the--were the boards on the other side of the mill in the same condition? Approximately in the same condition? A. Yes, sir. Yes, sir, they're approximately in the same condition.

'Q. Were they rough and uneven? A. They are rough and uneven, and just as the picture shows, they had been patched.

'Q. All right, now, tell the jury what happened when you changed sides and climbed up on the other side of the mill on the morning of December the 29th, 1953? A. Well, about all I can tell you, gentlemen, I come around the end of this truck because the wind had got so bad I couldn't grind from the west side which is the proper side to grind feed from. But it got so bad that I couldn't do it. We had about--I believe it was about 50 bales of hay on the truck, and I believe we had ground about eight or ten. I come around the end there and started to feed with my right hand. And I reached for a block of hay and this left leg broke away, slipped, and went out in under the truck and I fell, armlength, into this mill. Now, don't ask me how or why it didn't get more of my hand because I don't know. I don't know how I kept it from getting more of it.

'Q. How did you get out of the mill, Roy? A. Now, that is just something, Jack, that I can't honestly tell the jury. It was done so quick and fast that my hand was gone, and the only thing I remember was just a-running. I run from the time I went out--just as soon as I could possibly get my feet, I broke and run. And Mr. Dale was in the shop working and he didn't lose any time, none whatever, getting me to the hospital because he seen just as soon as I walked around that I didn't have any hand.

'Q. Were you hurting? A. No, I didn't hurt. I didn't hurt until around 3:30 that afternoon.

'Q. Did Mr. Dale take you right to the hospital? A. He take me right to the hospital, that's right.

'Q. And took you to what doctor? A. Dr. Gillette.

'Q. Did this mill have any sides on it of any kind? A. No, sir. There is no guards as far as I--I'm 46 years old and I have seen a lot of mills, and even seen a lot of old corn mills where they make corn in and meal, and I, as far as I'm concerned as what I've seen, there ain't such a thing as a guard on a hammermill. You've got your chute there all right, but the chute is only for one purpose: to keep the shaft out of your hand. The knives is wide open. You ain't got nothing but the table between you and the knives.'

Continuing his testimony relative to conditions surrounding the place where he was working, the plaintiff had the following to say on cross examination:

'Q. You have had considerable experience doing farming and ranching work? A. Yes, sir. I've had a right smart of it.

'Q. That has been your principal occupation? A. That's right. That's been my principal work of my life is ranching, more so ranching than farming.

'Q. And your preference of the kind of work there is to do is ranching, handling cattle and such as that? A. That's right.

'Q. You have necessarily in that work ground lots of feed? A. I've ground a lot of feed and fed a lot of it.

'Q. On just any ranch or farm it is part of the work that has to be done? A. Yes, sir.

'Q. You went to work for the Dale Brothers along about August 22nd, 1953? A. Oh, I don't think it was that late, was it?

'Q. Now, if your first check was dated that day, is that when that would be? A. Well, I guess it would be all right then.

'Q. And you were paid up to January 30, of 1954, by the Dale Brothers? A. That's right.

'Q. What were your duties out there on the--A. Well, just anything that come up.

'Q. Well, now the term 'ranch' has been used. This is primarily farm work, is it not? A. Yes, sir, I would say it was.

'Q. And you used the feed that was raised there to feed cattle as a means of disposing of it? A. Yes, sir.

'Q. How often had you had occasion to grind feed? A. Well, let me see, let me get the thing kinda' straightened out now. I'd say somewhere in the neighborhood of three weeks that we'd been grinding feed.

'Q. Somebody had to grind feed almost...