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Olsen v. Pigott

FEBRUARY 19, 1963.

HELEN OLSEN, ADMINISTRATRIX OF THE ESTATE OF RICHARD OLSEN, DECEASED, PLAINTIFF-APPELLEE,

v.

GEORGE PIGOTT AND JOHN KENYON, INDIVIDUALLY AND AS CO-PARTNERS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of DeKalb County; the Hon. CHARLES G. SEIDEL, Judge, presiding. Judgment affirmed.

SPIVEY, J.

A jury in the Circuit Court of DeKalb County returned a verdict in the amount of $15,000 for the plaintiff, Helen Olsen, Administratrix of the estate of Richard Olsen, deceased, in a suit for the wrongful death of Richard Olsen. Defendants George Pigott and John Kenyon appealed from the judgment on the verdict and the order of the Court denying their post trial motion.

The decedent was killed on December 1, 1959, when he was decapitated by a corn chopper he was operating while in the employ of the defendants. At that time, the defendants were partners in a farming operation. Richard Olsen was driving a tractor which pulled a corn chopper and a farm wagon in that order. The chopper was powered by a power takeoff and line of shafting extending from the rear of the tractor to the front of the chopper. The arrangement of the equipment was such that the drive shaft from the tractor connected to the center of the rear of the tractor immediately beneath the area where the seat would ordinarily be. This shaft was attached to the spline of the power takeoff. At either end of the shaft were universal joints, or knuckles, which allowed the shaft to operate while the equipment moved over any terrain. At the place where the shaft connected to the spline of the tractor, there was a metal housing fashioned in an inverted "U" shape, bolted in such a way as to form a cover over a part of the power takeoff and universal joint. At the time of the accident, however, most of the joint at the tractor was exposed and unprotected.

The shaft also was unprotected. In normal operation of the chopper, the shaft turned at a speed of 525 revolutions per minute. The shaft was a square steel shaft approximately three to four feet in length. When sold, the drive shaft was equipped with a cylindrical cover or housing with bell-shaped ends. The cylinder, or tube, enclosed the shaft and the bell-shaped ends covered the knuckles or joints. This housing "floated" on the shaft by means of bearings and protected persons operating the equipment from the danger of being entangled in the joints or upon the revolving shaft. On the day of the occurrence, the housing on the shaft had been removed. The seat to the tractor had also been removed and on the date of the occurrence and in order to operate the equipment, the decedent was obliged to stand on a small metal platform, and straddle the universal joint and shaft.

It is conceded that the field in which the decedent was working on the day of his death was muddy. Shortly after noon, the tractor, chopper and wagon were found by Ed Troutman, supervisory employee of the defendants, to be running wild in a corn field and the headless body of the decedent was found nearby.

An examination of the chopper disclosed that pieces of bone and hair were on the blades. Neither decedent's body nor clothing showed any other evidence of injury or disarrangement.

At the time of his death, the decedent was twenty-four years of age. He left surviving, his widow, Barbara, aged twenty-five, and two children, aged five and two. The evidence showed that he was a very industrious young man, who was working two jobs. The decedent was raised on a farm but his experience had not included the operation of a corn chopper. He had worked for the defendants for five days, but the record is not clear as to how much if any of that time was spent by the decedent in the operation of the chopper. There was testimony that when the decedent worked around farm machinery, he was careful.

Six years prior to this occurrence, the deceased had been involved in a motorcycle accident and received a depressed skull fracture. As a result of the injury, he developed "Jacksonian seizures" approximately nine months after the injury. He was treated by medication for at least two years and at the time of his death, Olsen's treating physician stated that Olsen had recovered and no longer experienced seizures. However, this testimony was disputed by evidence offered by the defendants to show that the deceased had seizures within a few months of his death.

Defendants, to maintain their appeal, contend that the plaintiff failed to prove that the defendants were negligent. They also contend that the deceased assumed the risk of any dangers incident to his employment. Further, defendants contend that the plaintiff failed to prove that any negligence of the defendants was a proximate cause of the decedent's death. The defendants also contend that the court erred in giving certain instructions offered by the plaintiff, and admitted erroneous evidence.

There were no eye witnesses to the occurrence and at the time of the trial, Ed Troutman, the defendants' supervisor, was physically unable to give testimony.

In support of defendants' contention that the plaintiff failed to prove that the defendants were negligent, the defendants say that there was no evidence to show that the defendants removed the seat from the tractor or the guard over the knuckles and drive shaft. It is true that there is no showing as to who removed the seat from the tractor and the guard from the drive shaft or when the same were removed. The defendants did not testify on this point.

One of the acts of negligence charged was that the defendants failed to furnish the deceased with reasonably safe and proper machinery with which to work. The evidence was to the effect that the guard on the drive shaft and the seat on the tractor were standard equipment. Certainly the machinery was not safe with these devices removed but defendants say that the plaintiff himself may have removed this equipment. Thus different inferences may arise from the evidence of the condition of the machinery.

Defendants would require that circumstantial evidence, in the absence of direct evidence to establish a fact, not only creates an inference as to the fact sought to be shown, but also excludes all other inferences. This has never been required. Courts have held that the name of a mercantile establishment on the side of a truck leads to the presumption that the truck was owned, operated and managed by such establishment. Bosco v. Boston Store of Chicago, 229 Ill. App. 564. Yet it is obvious that a name on the side of a truck does not exclude the possibility that the truck was not owned, operated and managed by the person or organization named on the side of the truck.

Similarly, proof of ownership of a vehicle has been held to be proof of a circumstance to show prima facie that the owner was the operator of the vehicle at the time of a collision. Again, this may be rebutted, but it is a sufficient ...


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