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Ferguson v. Lounsberry

MAY 5, 1965.

WILLARD FERGUSON, PLAINTIFF-APPELLEE,

v.

RICHARD LOUNSBERRY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Menard County; the Hon. MAURICE E. BARNES, Judge, presiding. Reversed.

SMITH, P.J.

Rehearing denied June 2, 1965.

While operating a power-driven corn elevator on the farm of his defendant employer, plaintiff's clothes became entangled in its mechanism and he sustained injuries. The jury returned a verdict in his favor for $65,000. Defendant's post-trial motion for judgment notwithstanding the verdict or in the alternative for a new trial was denied. From this judgment entered on the verdict and the denial of his post-trial motion, the defendant appeals.

Defendant first asserts that the plaintiff was guilty of contributory negligence which bars his recovery. This requires our scrutiny of the situs, the circumstances and the conduct of the plaintiff at and immediately before the occurrence. It likewise requires a consideration of the respective proper functions of court and jury in the factual picture presented by the evidence. The occurrence events come almost exclusively from plaintiff's lips, as the only other eyewitness was the 3 1/2-year-old daughter of the defendant.

It is abundantly clear from the evidence that plaintiff was a 29-year-old farm hand and experienced in the operation of mobile farm grain elevators. He was employed by the defendant when the particular equipment was purchased three years before, had operated it many times and had been operating it a week or more before the accident. He had "spotted" or placed the equipment for the unloading process and had repaired the knuckle to which reference will be made later. The day in question was cold and somewhat damp. The plaintiff had on two pair of long underwear, a wool slipover sweater and was generally warmly and heavily clothed. It seems clear from the evidence that it was this sweater which first became entangled in the mechanism.

The corn elevator was generally typical in design and operation, is commonly called a corn dump, and is used to elevate corn from its hopper into an adjacent corncrib. The lower end of the dump rested on the ground. Power was supplied by a tractor stationed at a right angle from the lower end of the dump with the rear end of the tractor nearest the lower end of the dump and some 4-5 feet space intervening between them. Extending from a knuckle on the tractor take off to a gear and bicycle assembly on the lower side of the dump was a square shafting which fitted into a knuckle on the side of the dump and about one foot from it. This shafting was some 14-16 inches from the ground and when in operation revolved at about 275-280 revolutions per minute. Because of the high moisture content of the corn, the tractor was throttled at about twice its normal speed and the revolutions of the revolving shaft were correspondingly increased. Extending from the lower end of the dump and perpendicular to the tractor is a hopper about 5 feet in length, or the width of a wagon. From the rear end of the wagon, the corn is gradually dumped into this hopper and then elevated to the crib. There is some spillage in this operation and on this day some 5-6 bushels of corn were on the ground. With the equipment in operation, plaintiff was picking up this corn and he states the sequence of events in this language:

"Well, I was squatted down and I had the elevator in motion running and I was picking it up by hand and was throwing it in and I had cleaned up pretty well all right along the hopper and I was squatted down and I made a left hand turn towards the shaft and reached over to pick up some corn and it got hold of my clothing.

"After it got hold of my clothes, I remember it jerked me up and started taking me around, flopping me through the air, and I guess I hit my head on the ground or something and I just passed out from shock. That's all I remember until I regained consciousness. I woke up and I could see Mr. Lounsberry's little daughter standing there in a blur, haze, and so I told her to go get her mother. I had just a little piece of clothing here and there. . . ."

And on cross-examination, we find this question and answer:

"Q. Well, let me ask you if you recall the same day Mr. Lounsberry does, June 25, 1962, when you were in my office and under oath and did I ask you these questions: `Question, Do you know what position you were in when you became entangled in the machine? Answer, Yes, I was squatted down picking up corn. Question, How far were you from the moving parts of the machine and drive shaft? Answer, I was sitting right alongside of it. The distance I couldn't say. Question, Facing it or with your back to it? Answer, I would be with my left side to it and I made a left hand turn to pick up corn. Question, So you were facing the elevator yourself, looking at the left side of it and your left arm was by this knuckle and the moving drive shaft? Answer, Until I made my turn, turned facing the shaft. Question, Did you stand up at the same time you turned? Answer, No.' Did you make the answers to those questions on June 25, 1962, under oath? A. I did."

Some five months before the accident, the plaintiff repaired and welded the knuckle on the shaft nearest the corn dump. In so doing, a burr resulted which extended about 1/2" beyond the remainder of the knuckle. One of the disputes in this case is whether or not the plaintiff's clothing caught on this burr as the knuckle revolved or caught on the revolving shaft itself. Whatever significance the burr may have on other questions in the case, we do not deem it controlling on the issue of contributory negligence. Likewise there is much controversy and some conflict in the evidence as to whether the plaintiff reached over or under the shaft or knuckle. In our view of this matter, it makes no difference. There is controversy in the evidence as to whether a shield for the shafting and the knuckle was purchased with the equipment. There was none on the day of the accident and this too we do not deem controlling on the issue with which we are now confronted.

It is but the assertion of a ritualistic truism, hoary with age and dog-eared from repetition, to say that contributory negligence is ordinarily a question of fact for the jury. Where the underlying facts, factors, conduct and circumstances, together with their reasonable inferences and implications, are beclouded or uncertain from conflicting or divergent testimony, it becomes the time-honored function of the jury to sort the wheat from the chaff and to seek out and find the truth and to express that truth in its verdict. This is hallowed ground properly barred from invasion by either the trial or reviewing courts. It is when the underlying facts, factors, conduct and circumstances, together with their reasonable inferences and implications, present a clear, sharp and vivid picture of conduct that a pungent question of judicial intervention rears its ugly head. Two schools of thought are extant: One is the Holmes view which prompted him to say that "every time that a judge declines to rule whether certain conduct is negligent or not he avows his inability to state the law, . . ." Holmes, Law in Science and Science in Law, 12 Harv L Rev 443, 457 (1899). The antithesis of this view is one which permits the jury to meander within broad general principles of law and by its verdict label certain conduct negligent or nonnegligent. A like set of facts before one jury imposes liability and before another jury denies it. Standards of conduct vary from week to week, from jury to jury and from community to community. Malone, Contrasting Images of Torts, 13 Stan L Rev 779 (1961).

While each case comes clothed with its own set of facts, the trial we must follow in this case is pretty well marked. It is rather succinctly delineated in Kelly v. Fletcher-Merna Co-Op. Grain Co., 29 Ill. App.2d 419, 424, 173 N.E.2d 855, 858, in these words.

On appeal from a decision granting or refusing a directed verdict in favor of defendant, the only question for review is the question of law, whether there is any evidence, standing alone and when considered to be true, together with the inferences which may be legitimately drawn therefrom, which fairly tends to support the cause of action, so that the jury might reasonably have found for plaintiff. Seeds v. Chicago Transit Authority, 409 Ill. 566, 101 N.E.2d 84; Lindroth v. Walgreen Co., et al., 407 Ill. 121, 94 N.E.2d 847. The question is whether there is a total ...


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