Van Aernam v. Nielsen

• Decision Date: 05 March 1968
• Docket Number: No. 52794,52794
• Citation: 261 Iowa 1115,157 N.W.2d 138
• Parties: Gary VAN AERMAN, Appellant, v. Carl NIELSEN, Appellee.
• Court: Iowa Supreme Court

Page 138

157 N.W.2d 138

261 Iowa 1115

Gary VAN AERMAN, Appellant, v. Carl NIELSEN, Appellee.

No. 52794.

Supreme Court of Iowa.

March 5, 1968.

David E. Green and James Furey, Carroll, for appellant.

Taylor & Taylor, Guthrie Center, for appellee.

MASON, Justice.

The accident out of which this law action arose occurred about 5:30 p.m. November 16, 1964, on defendant Carl Nielsen's farm in Audubon County when plaintiff Gary Van Aernam's left hand and leg became caught in the rollers of defendant's mounted corn picking unit. Plaintiff was defendant's employee at the time of his injuries for which he seeks damages.

Plaintiff alleged defendant was negligent in failing to have mud scrapers on the corn picking unit; failing to maintain safe machinery and appliances for plaintiff; failing to furnish plaintiff a safe place to work or safe premises to work on; allowing plaintiff to operate the corn picker when defendant knew the area where he had ordered plaintiff to pick corn was wet, muddy and hazardous and the picking unit was not operating properly; furnishing plaintiff with old, obsolete and dangerous machinery which was not suitable for picking corn; and failing to advise or warn plaintiff that the contoured field was too wet to pick corn.

By these specifications of negligence plaintiff in effect asserts defendant's conduct constituted a breach of his duty to (1) provide plaintiff with a safe place to work and (2) use reasonable care to provide and maintain for plaintiff reasonably suitable and safe appliances, machinery and tools with which to work.

At the conclusion of plaintiff's evidence to the jury, defendant's motion for a directed verdict on all grounds urged was sustained and plaintiff has appealed from the judgment entered on the verdict.

I. He assigns as error relied upon for reversal (1) sustaining of defendant's motion for directed verdict on the ground that (a) plaintiff failed to show a breach of duty owed by defendant, (b) plaintiff failed to show defendant's conduct was the proximate cause of plaintiff's injury and (c) as a matter of law plaintiff assumed the risk which caused his injuries; and (2) error in ruling on objections to plaintiff's evidence.

II. In Frederick v. Goff, 251 Iowa 290, 295, 100 N.W.2d 624, 627, in referring to the extent of defendant's duty in such cases we said:

'It is a settled rule that an employer must use reasonable care to provide and maintain for his employees reasonably suitable and safe appliances, machinery and tools with which to work.' See also Kregel v. Kann, Iowa, 152 N.W.2d 534, 536, and citations, where we said:

'However, the employer is not an insurer of the safety of the tools, machinery or appliances, nor of the safety of the employee in using the instrumentalities furnished but is only liable for negligence (Citing authorities).

'The employer must exercise reasonable are to eliminate dangers which are not the usual or ordinary incidents of the service when he has exercised such care' (Citing authorities).

In determining whether the employer exercised reasonable care there is no absolute standard to which his conduct must conform. The law requires the employer in the performance of his duty to exercise that degree of care which a person of ordinary care and prudence would use under the same or similar circumstances. Although the employer's duty is to exercise reasonable care whether the work is comparatively safe or extremely dangerous, the duty becomes more imperative as the risk increases. Kregel v. Kann, supra, Iowa, 152 N.W.2d at 537--538.

III. With these principles in mind we consider the propriety of defendant's motion for directed verdict, viewing the evidence in the light most favorable to the party against whom the motion was made. Rule 344(f)(2), Rules of Civil Procedure.

The day before the accident it had rained, it was wet and foggy that night and muddy the next morning. The farm lot yards and the field where the accident occurred were wet and muddy. Plaintiff and defendant spent the morning working around the farmyard. After dinner defendant told plaintiff to start picking corn. The area in which he was to pick was on a contoured hillside, mostly clay. Plaintiff started picking corn about 2 p.m. using defendant's two-row corn picker which was about a 1950 model mounted on a later model diesel tractor, although the tractor itself was approximately 10 years old. The tractor did not have wheel cleaners on it. We are told wheel scrapers or mud cleaners are pieces of iron that sit flat between the front wheels, come out, split and go around the front wheels. Their purpose is to scrape the mud off the wheels so they don't slide, enabling you to guide the tractor.

In the fall and winter of 1963 and spring, summer and fall of 1964, plaintiff and defendant discussed the need for mud scrapers.

The front wheels of this model tractor were set closely together. When used in mud without scrapers, these wheels had a tendency to clog and slide, making it difficult to steer, control and operate the unit on the corn rows. The center divider of the picker which hooked on the hubs of the front wheels was off. As a result, mud from the wheels was pushed up against and filled the picker snoots. These were pushed down and had to be cleaned.

As the wheels became clogged, the operator, in an effort to dislodge the mud, would reverse the tractor, pack up and then go forward. If not successful, this maneuver had to be repeated. Then if this failed it was necessary for the operator to get off the machine and dig the mud from the front wheels with his hands. Of course, this required him to stop the tractor, get off, walk around the picker, unhook the chain that raised the snoot, pinch two clips if they weren't bound tight and remove the snoot. Otherwise, a flap had to be pulled out and the mud dug from the clips so they could be squeezed together, the snoot removed and the mud pulled out. The operator would then replace the snoot, walk around the machine, put everything in gear and attempt to go forward again for a short time.

The morning of the accident plaintiff and defendant talked about the need for mud scrapers, at dinner they talked about the matter again. Defendant said they were needed. Plaintiff says he got the impression defendant might get mud scrapers after dinner when he took a load of hogs into town. After defendant returned from town, the parties again talked about the need for the scrapers at the midafternoon lunch period. Plaintiff explained to defendant that he had been going backwards and forwards, getting off and cleaning out the mud and getting back on and repeating the same thing over and over all afternoon.

About 4:30 defendant came to the field where plaintiff was picking, mentioned observing the spots where plaintiff had stopped to dig out mud and the areas where the wheels had been sliding. He said if they had mud scrapers, they wouldn't be having the trouble experienced. Defendant, called as plaintiff's witness, testified he recalled plaintiff mentioned three times on the day of the accident the difficulty he was having picking corn.

Plaintiff says from the time he started picking until the accident, he had gotten off the tractor 12--14 times, maybe more, to clean the wheels. Five or six of those times occurred during the hour before the accident.

Plaintiff had had trouble with mud balling up on the front wheels in the spring of 1964.

Defendant had purchased the picker in September or October of 1964 from a neighbor. At the time it was located by the side of the neighbor's driveway and hadn't been used for five or six years. As it was being mounted on the tractor, plaintiff observed some chains, sprockets and bolts were missing. It was badly rusted and described as an old, obsolete unit. The chains that were there were thickly rusted, had to be soaked in oil and kerosene to free them so they would work. It was necessary to weld the picker in several cracked spots, bearings had to be freed and bolts replaced.

After defendant got the picker and started picking corn, they had mechanical troubles almost every day which required making repairs. Defendant bought another picker of the same model from another neighbor's junk pile, taking parts off this picker to repair the mounted picker. Most of the time defendant helped make the repairs.

The shut-off unit which controls the movement of the picking rollers on this model picker was described as the 'meanest one there ever was to shut off.' As we understand the record, there are two switches on this mounted unit. One, similar to that of an automobile, starts and stops the diesel engine, the other is a power take-off type for control of the picking rollers. This shut-off lever was homemade by plaintiff and defendant consisting of a rod running from back by the clutch under the steering wheel through a plate to a lever...