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Bangert v. Nolan

DECEMBER 9, 1970.

KENNETH BANGERT, PLAINTIFF-APPELLEE,

v.

VINCENT NOLAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Christian County; the Hon. BILL J. SLATER, Judge, presiding.

MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

The plaintiff Kenneth Bangert brought his action for damages sustained by reason of injury caused by one Alfred Quinn, a farmhand in the employee of the defendant Vincent Nolan. The defendant has brought this appeal from a jury verdict in favor of the plaintiff in the amount of $30,000.00

The unusual facts of this case concern the relationship of three individuals. The plaintiff Kenneth Bangert, hereinafter called "Bangert", was a farmer who tilled his own land, tilled land that he leased from the defendant Nolan, hereinafter called "Nolan", and also had in effect at the time of the injury, October 20, 1966, a contract by and between himself and Nolan wherein Bangert and Nolan agreed to aid one another in their respective individual farming enterprises. The third individual is Alfred Quinn, a farmhand in the employee of Nolan, hereinafter called "Quinn".

Bangert and Nolan were neighbors. Bangert generally checked with Nolan every day to see what work Nolan wanted done. Also Bangert checked every morning to see if Nolan was all right. Bangert and Nolan exchanged work with Nolan's share of the work being actually performed by a farmhand supplied by Nolan. On this occasion the farmhand supplied was Quinn.

The injury occurred on October 20, 1966. Nolan owned a John Deere tractor and wanted a stalk lifter that Nolan had recently purchased attached to the tractor. It was during the attaching operation that the injury was sustained.

The stalk lifter was made to be attached to the side of the tractor but to accomplish this task it was necessary that the position of the front wheels of the tractor be changed by "narrowing" them. The tractor was made so that the distance between the two front wheels could be varied to fit the requirements of the user. The plaintiff and Quinn were engaged in changing the position of the front wheels when the injury occurred.

The front wheels of the tractor were on a steel axle which fitted into a metal casing. Holes extended through the axle and casing and by means of a bolt the axle and casing were connected. The bolt was approximately six (6) inches in length and the nut two (2) inches in diameter, the head was countersunk and slotted for a screwdriver. In attempting to remove the bolt plaintiff was injured.

On the day of the injury, Bangert went to Nolan's house and Nolan asked Bangert to narrow the wheels and attach the stalk lifter to the tractor. Quinn was present and Nolan said Quinn would help. The tractor and lifter were outside Nolan's house. At no time germane did Nolan leave his house.

Bangert testified that Nolan said, "Kenneth will you take Alfred out there to help you and get the stalk lifter on". Bangert agreed whereupon Bangert and Quinn proceeded outside. They jacked the tractor up. Bangert then put his big screwdriver in the slot in the bolt, gave Quinn a crescent wrench and told him to "get on the nut". Bangert provided both tools. When Quinn turned the nut Bangert could not hold the bolt with the screwdriver. The bolt, nut and tools all turned. Bangert then told Quinn "to hold it a minute", which Quinn denies, and Bangert turned and from his tool box obtained a 3/8" open end wrench and placed it on the screwdriver shaft. Quinn, without being directed by Bangert, then gave the crescent a jerk putting all his weight into it, and the open end wrench flew off and struck Bangert in the face causing the injury.

Immediately before the injury Bangert was standing to the rear of the front axle facing the front end of the tractor. Quinn was facing the rear of the tractor. The parties were facing each other over the axle and were about two (2) feet apart.

The complaint filed in behalf of Bangert alleged that defendant invited the plaintiff to come upon his premises and that injury resulted from the activities of Quinn, Nolan's employee. Defendant's amended answer contained Affirmative Defenses of Assumption of Risk and Fellow Servant Rule. The trial court denied Nolan's Post Trial Motion.

The defendant urges that the court erred in three particulars. First, in that complaint failed to establish a duty owed by the defendant to the plaintiff, second that because of the contractual relationship between the parties, plaintiff with defendant was either Master and Servant or an independent contractor and under either defendant is not liable as a matter of law and thirdly Bangert was contributorily negligent as a matter of law.

• 1 First, is there a duty owed by the defendant to the plaintiff? We think that the defendant owed a duty of ordinary care to the plaintiff, and whether or not Nolan through his employee Quinn exercised ordinary care was a question of fact to be decided by the jury. The injury to the plaintiff in no way resulted from any unsafe condition of the plaintiff's land. Bangert contends that it resulted from Quinn's sudden and massive application of force to the crescent wrench without warning to Bangert. Quinn could have realized that some injury might result to Bangert from this action. There was evidence from which the jury could so conclude, and the fact that there was evidence from which the jury could have concluded that Bangert selected inadequate tools or could have told Quinn to wait until he was ready, since the details of the work were admittedly under Bangert's direction, is of no consequence; the jury had an opportunity to determine if ...


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