Wagner v. Larson
| Decision Date | 30 June 1965 |
| Docket Number | No. 51660,51660 |
| Citation | 257 Iowa 1202,136 N.W.2d 312 |
| Parties | Frederick A. WAGNER, Appellee, v. Eldon LARSON, New Holland Machine Company, Inc., a Corporation, Lundell Manufacturing Company, Inc., a Corporation, and Sperry Rand Corporation, Appellants. |
| Court | Iowa Supreme Court |
Kinding, Beebe, McCluhan & Rawlings, Sioux City, for appellant Eldon larson.
Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, for appellant Lundell Mfg. Co., Inc.
John Paul Jones and W. C. Hoffmann, Des Moines, and Joe G. Nelson, Cherokee, for appellants New Holland Machine Co., Inc. and Sperry Rand Corp.
Miller, Miller & Miller, Cherokee, for appellee.
This is an appeal from a judgment for plaintiff against three separate defendants arising from injuries received while operating a silo unloader. Plaintiff is a farmhand. He sued the farmer by whom he was employed (Larson), the distributor of the silo unloader (Lundell), and the successor in interest to the manufacturer (Sperry Rand Corporation.)
Plaintiff's action against his employer was based on alleged negligence in failing to provide safe machinery and a safe place to work. In separate divisions plaintiff's action against Lundell and Sperry Rand was based on negligence and breach of implied warranty. The case was tried to a jury. The jury returned a verdict against all defendants.
As plaintiff's claims against the respective defendants do not proceed from the same premise they will be separately considered.
Division I of plaintiff's petition is directed against Eldon Larson.
Defendant Larson, plaintiff's employer, is a farmer and extensive cattle feeder. He had two silos equipped with silo unloaders. They were self-propelled machines as distinguished from suspended type machines. The machine rests on the silage as it moves around, picking up the silage as it makes a forward motion. Each machine had a guide wheel to keep the unloader centered in the silo, a leveling device, dual drive wheels, depth adjustments, dual chippers to remove frozen silage from the silo wall, and dual augers to deliver silage to the thrower. Each auger was equipped with steel cutting knives to remove hardpacked or frozen silage.
When in operation the machine revolved slowly over the packed silage cutting and augering the silage for delivery to the down chute. The moving parts were not shielded. The power was controlled by an outside electric switch at the bottom of the silo. There was also a disconnect plug on the center pole of the machine.
Pictures of the machine were received in evidence. The following is a reduced in size reproduction of plaintiff's Exhibit 4:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The two silo unloaders had been owned and operated on the Larson farm since prior to plaintiff's employment. They were in the same condition as when purchased and had no broken parts. Except as noted, infra, they operated satisfactorily.
Plaintiff was employed as a farmhand by defendant Larson in August 1960. This employment continued until January 20, 1962. Incident to his job he worked with the silo unloader involved herein and was familiar with its construction and operation. Most of the time Mr. Larson would work with plaintiff.
At time the unloader would get stuck in the silage. The augers and cutting parts would keep turning but would not move forward so as to revolve over the silage. When this happened the machine would dig itself into a hole. This might happen when the silage was loose but usually happened when frozen silage accumulated on the silo wall.
When this happened one of the men, sometimes Mr. Larson and sometimes plaintiff, would climb up the chute and into the silo. The other man would shut off the power from below. The reason for shutting off the power while a man was in the chute 'was to keep what little silage that was coming down from getting down your neck.' The man on the ground served no other purpose. When the man inside was ready he would yell and the power would be turned on. With the power on and the various parts turning the man inside would rock the machine from the front and from the rear until it was loosened and moving. Plaintiff was familiar with and had followed this procedure during the time of his employment. Plaintiff's knowledge of and familiarity with the machine was from observation and experience and not from specific instruction.
He testified that he did not consider it dangerous to be in front of the machine or that either the machine or the silo was dangerous.
On January 20, 1962 plaintiff was working alone. Mr. Larson was at home recovering from surgery. The temperature was 27 degree below zero. Plaintiff started the silo unloader by turning on the switch at the bottom of the silo. Silage started coming down the chute. After a short period of time plaintiff 'could hear that it had quit throwing down silage, so the next thing was to go up and get it going again.' The same thing had happened twice the day before and plaintiff had been in the silo then. He knew the conditions in the silo. Plaintiff then testified:
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Plaintiff was standing on frozen silage, where the machine 'would move if it came loose.' He was pulling on a rod in front of the machine. He does not know just what happened but he slipped and fell on his back. His feet went into the moving parts of the machine. His left foot was severed and his right foot injured. He testified that just before the accident he was holding a fixed rod which does not revolve or turn or have any motion whatever.
I. Plaintiff's claim against defendant Larson is based on and was submitted to the jury on specifications of negligence. The jury was properly instructed that contributory negligence of plaintiff should be considered only in mitigation of damage and that the burden of proving assumption of risk was on defendant.
If supported by substantial evidence the findings of fact by the jury are binding on us and we give plaintiff's evidence the most favorable construction it will reasonably bear. Citations unnecessary. See rules 344(f) 1 and 2, Rules of Civil Procedure, 58 I.C.A.
The trial court's Instruction #22 stated the employer's duty to his employee as follows:
'The law provides 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.
'If you find from a preponderance of the evidence that the defendant Eldon Larson failed to use reasonable care to provide his employees with reasonably safe appliances, machinery and tools with which to work, as herein defined, then such failure would constitute negligence on his part.'
The correctness of this instruction has not been challenged. Within this definition the court submitted five specifications of negligence charged against defendant Larson. The court told the jury that proof of any of the charges would establish negligence.
II. The first specification was as follows:
'(a) In requiring plaintiff to operate a silo unloader which was defective and which defendant knew, or should have known, was defective, and that said silo unloader was defective for want of safety devices and by reason of unsafe design.'
The substance of this charge is that defendant Larson knew or should have known the machine was defective for want of safety devices and unsafe design.
There is no evidence in the record that the unloader at the time of the accident had any worn, broken or defective parts. There is no evidence that Mr. Larson knew anything about silo unloaders except the two he owned. There is nothing to show that he knew anything about safety devices or design of machinery. This specification does not go to the duty of an employer to keep machinery in repair or to warn or guard against latent defects. It goes directly to the responsibility of a farm employer for the safe design of the machinery on his farm.
In his petition plaintiff attempted to particularize this specification by reference to design defects alleged in subsequent paragraphs but its substance as pleaded and submitted related solely to the liability of the employer for design by the manufacturer.
III. Section 88.14, Code of Iowa, I.C.A., providing that an employee shall not be deemed to have assumed the risk incident to using defective or out of repair machinery, under certain circumstances, does not make an employer liable for the design of machinery under the circumstances shown in this case. Except as plaintiff charges a dangerous design there is no showing that the...
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