Appeal from the Circuit Court of Greene County; the Hon. CLEM
SMITH, Judge, presiding. Affirmed.
JUDGE ROETH DELIVERED THE OPINION OF THE COURT.
The injury which forms the basis of this suit arose out of a farming operation being the filling of a silo with ensilage. On the day of the occurrence five persons were engaged in the operation, namely the plaintiff, the defendants who are father and son, a second son of the defendant Pernell Guthrie by the name of Charles, and an employee of the defendant Gerald Guthrie by the name of Leo Doyel. The father Pernell Guthrie and the two sons Gerald and Charles each own farms. These farms are located in close proximity to each other. Over a period of years they have periodically helped each other in the various farming operations on each of the farms on a family arrangement basis. No salaries were paid and the work was done on a cooperative basis. The plaintiff is a farm hand and had been working as such for Charles Guthrie for about a year and a half prior to the occurrence in question. He had been a farm hand all his life.
The silo filling was being conducted on the farm of Gerald Guthrie. The machine being used was owned by Charles and Gerald Guthrie. It had been used on prior occasions on the farms of Gerald, Charles and Pernell Guthrie. In addition to this machine Charles Guthrie was furnishing his tractor for use as power to run the machine and Gerald Guthrie furnished the tractor and wagons and cutter being used in the field.
On the Saturday before the accident Charles Guthrie, Gerald Guthrie, a son of Gerald's and the plaintiff had set up the equipment. The silo filling operation commenced on Monday and extended over to Tuesday, the day of the accident. On the day of the accident Gerald Guthrie had employed Leo Doyel to assist in the operation. The defendant Pernell Guthrie had come over to Gerald's farm as on the previous day. Also Charles Guthrie had come over to Gerald's farm bringing with him his hired hand, the plaintiff, also as on the previous day. These men had filled silos before and were familiar with the various tasks that were necessary to complete the operation. Gerald ran the cutter in the field and filled the wagons. Charles hauled the wagons with a tractor from the field to the silo filling equipment. He ran the tractor furnishing the power, helped spot the loaded wagon in front of the silo filling machine and then, while the wagon was being unloaded, he assisted in breaking the ensilage so that it did not clog the machine. Pernell assisted in the spotting of the wagons, helped remove and replace the end gates on the wagons and usually had charge of shifting the clutch to start or stop the auger. Plaintiff and Leo Doyel at times helped spot the wagons and primarily worked in breaking the ensilage as it came from the wagon into the machine.
The silo filling machine is referred to as a blower. It is a metal trough like machine about 10 feet long and 18 inches deep. The sides slope inwardly. The top opening is approximately 2 feet across. In the bottom of the machine there is a 10 inch auger which can be set in motion by means of a clutch lever to draw the ensilage into a blower mechanism. Extending the full length of the blower on one side there is a u-shaped metal covering which is approximately 12 inches wide and 18 inches high above the top of the blower. This covers the belt which is connected to a tractor to furnish power for operating both the auger and blower. A large fan is encased in a circular metal housing located at one corner of the machine which sucks the ensilage away from the auger as it is fed from left to right and blows it through pipes into the silo. This fan housing extends above the top of the trough and above the top of the u-shaped metal belt covering. Directly opposite the fan housing there is a 2 foot platform which forms the covering for the gear mechanism of the auger. The clutch lever protrudes through this platform.
When a load of ensilage is brought to the blower the wagon is backed up to this trough like mechanism so that the back of the wagon is parallel with the length of the trough. The wagon is equipped with a canvas sheet covering the bottom of the wagon. This canvas is in turn connected to a roller at the back of the wagon. The roller is hooked up to a portable gasoline motor which, when placed in operation, winds the canvas on the roller, and as it does so, it pulls the ensilage from the front of the wagon to the back and dumps it into the trough where in turn it is moved by the auger to the fan and blown up into the silo. The ensilage has a tendency to pack in the wagon so that large chunks fall into the trough which are manually broken so that the auger does not clog.
In substance the complaint alleges that plaintiff was an employee of Charles Guthrie and as such was working on the farm of defendant Gerald Guthrie; that defendant Pernell Guthrie was also working on the farm of Gerald Guthrie; that Pernell Guthrie was the servant or agent of Gerald Guthrie; that plaintiff's leg became caught in the auger of the blower as a result of the negligence of Pernell Guthrie; that the negligence of Pernell Guthrie consisted of (1) carelessly placing the wagon in such a position and at such an angle so that plaintiff was unable to maintain his balance while standing on the blower and breaking the chunks of ensilage and (2) carelessly failing to release the clutch so as to stop the auger in time to prevent plaintiff's leg from being caught in the auger; and that plaintiff was exercising due care for his own safety.
To the complaint defendants filed an answer admitting that plaintiff was an employee of Charles Guthrie and as such was working on the farm of Gerald Guthrie; admitting that Pernell was also working on said farm; denying that Pernell Guthrie was the servant or agent of Gerald Guthrie; denying the negligence alleged; and denying due care on the part of plaintiff. The answer also affirmatively alleged (1) that plaintiff assumed the risk of his employment and (2) that he was guilty of contributory negligence. Upon a trial of the issues the jury found for the plaintiff and against both defendants and assessed plaintiff's damages at $12,500. The usual post trial motions were filed and overruled and judgment was entered on the verdict.
On this appeal defendants contend that the trial court should have directed a verdict because (1) that plaintiff failed to prove the acts of negligence as charged; (2) that plaintiff was guilty of contributory negligence as a matter of law; (3) that plaintiff assumed the risk of his employment.
The plaintiff testified that he had been employed by Charles Guthrie for a year and a half prior to the accident as a farm hand. He was paid a monthly wage, given some produce and house rent. On various occasions he was directed by his employer to go to the farms of Gerald and Pernell Guthrie to assist them in various farming operations. He was not paid any additional salary by either Pernell or Gerald on these occasions. Following this custom he had come to the farm of Gerald on the day in question. On prior occasions when he worked on the Gerald Guthrie farm, Gerald directed the work and on this day Gerald decided what should be done. Plaintiff further testified a wagon load of ensilage was brought up from the field and that he, Charles Guthrie and Leo Doyel pushed the wagon up to the blower while Pernell Guthrie spotted the position of the wagon. After the wagon was spotted he said that he noticed that it wasn't square with the trough of the blower; that it was sort of cater-cornered and that he mentioned this to Pernell Guthrie. The tractor was then started and the clutch was thrown, to place the auger in operation. Charles Guthrie stood on the ground at the corner of the wagon and trough away from the fan mechanism. Leo Doyel was standing on the ground at the back end of the trough midway between the two ends reaching over the tractor belt housing with a pitch fork. Plaintiff stood on the blower machine with his right foot on the tractor belt housing and his left foot on the platform through which the clutch protruded. In this position he was straddle of the auger. He further testified that on prior occasions when he had worked filling silos and on the day before and up until the time of the accident he had stood on the metal platform covering the gear mechanism; that no one had ever told him not to stand there; that he assumed this position for convenience in doing the work and that he could not have reached the ensilage on that side without being up on the blower on this platform. He further said that because of the angle at which the wagon had been spotted he could not stand with both feet on the platform but had to straddle the auger as he did. While reaching for the ensilage in this position, he lost his balance and his right foot dropped into the trough and was mashed by the moving auger. The trough of the blower was full of ensilage when his foot dropped in. He did not know where Pernell Guthrie was when this happened but that "it was quite a little while after my foot got in there before it was shut off."
Pernell Guthrie called as a witness under Sec. 60 testified that part of the time that day he directed the spotting of the wagons and signaled when to stop and turn. He also said that on the day in question all the spotting of wagons was done with the tractor. He admitted operating the clutch mechanism. He admits that on the day in question he stayed near the clutch part of the time and part of the time he didn't. After starting the auger in operation just prior to the accident he went to the front of the wagon to check the canvas sheet and to see if it was moving. When questioned as to whether he was at the front of the wagon when the accident happened he said he had returned to his position at the clutch when plaintiff fell into the machine; that he was back of the plaintiff when he tumbled into the machine and that he grabbed the clutch lever and stopped the auger immediately. Some doubt is cast upon this testimony by reason of his answer to questions propounded on taking of a pre-trial deposition. Pernell Guthrie also testified that he was not employed by either Charles or Gerald but was assisting in accordance with the work arrangement existing between him and his two sons.
Charles Guthrie testified that he did not see the plaintiff slip. His attention was first directed to something unusual when he heard the plaintiff holler. He then ran back to shut off the tractor. The auger was shut off before the tractor was stopped but he was unable to say what time transpired between the plaintiff shouting and the auger was stopping. As to the position of the wagon in reference to the blower, he says it was about average; that the ensilage was falling into the blower the way they wanted it to.
Leo Doyel saw the plaintiff slip into the trough. He had no recollection of where Pernell Guthrie was when this happened. He did not remember the wagon being at an angle ...