154 N.W. 812 | S.D. | 1915
Plaintiff in this action had judgment for personal injuries received while operating a haystacker for defendant, and the injury -is claimed to have been the result of the defective condition of the stacker at the time of the injury. The stacker in question is composed of a wooden frame resting upon the ground and held in place by stakes driven into the ground. On either side of the end of this frame, next to the stack, are fastened two long strips of wood, called the “loading arms,” and, upon the outer ends of which are fastened certain wooden arms or fingers, called the “loading fork.” This, loading fork carries the hay from the ground to the stack. The .fork, with the load, is elevated to the stack by horse power, which is applied by means of a draft rope. This rope passes through, various pulleys, two of which are attached to. that portion of the frame above mentioned that is nearest to -the stack and which is styled the “crossbar.” These pulleys are so arranged that, when the team pulls on the .rope, the fork, with the load of hay, rises from the ground, and, passing through the arc of a circle, is' thrown directly towards the stack; but, in order to. carry the hay the desired distance, the fork must pass a .point .directly over or perpendicular to the lower ends of the loading arms. To use a common phrase, it is carried “past the balance.” Running from the loading fork to the outer end of the said frame is a wire cable, on one end of which is a strong .spiral spring. The purpose of this cable and spring is two-fold. By properly adjusting the length of the cable, it will permit the fork to carry the load the required distance, but will prevent the fork from falling over onto the stack, while the spring will cause it to stop, gradually and without unnecessary jerking and straining on the pulleys and their fastenings; and, as the rope slacks, the said spring also, pulls the empty forks back past the balance, so that, as the team is backed and the rope slacks, the fork will return to the ground by its own weight; but, so long as the pulleys and fastenings are all in place, the fork can come down no faster than it is permitted to do. by the backing of the team. Two. of the pulleys, through which the draft rope runs, are fastened
About -a month prior to -the happening of the accident -that caused the injury complained of, the spiral spring, above mentioned, broke, and a rope was -substituted for -the -cable and spring. The rope would stop the fork and keep- it from falling over onto the stack, but it would not pull it back past the balance as the spring had clone; and, in order -to get it back, it -was necessary for the operator to pull it back by means- -of said rope; but, to- do this, he must go in between the loading arm-s and under the fork as it comes down. Neither would this rope stop -the loading fork gradually and without jerking as the spring had -done, but would stop it with a jerk. Plaintiff had been using the stacker for some time -before -this, 'but was not using it, and was not present, at the time the spring' was broken and the ro-pe put -on in its place. He returned to work on -the following day, however, when- the defendant’s- foreman gave him instructions and showed him how to operate the stacker with the rope.
In elevating a load of hay — and, by a strange coincidence, it was -the- last load of -the -last stack of the season — the eye (or hook) on the bolt, which held one of the pulleys to the crossbar of the frame, straightened out and released the pulley; but this fact was not discovered until after the -accident. A noise, -as though something had slipped -or broken, was heard, and plaintiff, thinking it was caused by the loosening of one of the -stakes, took a maul and drove the stake back in place. He then took hold of the rope that was fastened to- the fork and- .pulled the fork back past the balance, but, because of the pulley having -been released from the -cross-bar, there was nothing to -check the -descent of the fork, and it fell so rapidly that plaintiff did not -h-ave time to get out from between th-e -loading arms, -and one of them fell upon him, resulting in a very- serious and permanent injury.
It is alleged in -plaintiff’s complaint that it was the duty of defendant to provide plaintiff with a safe an-d suitable haystacker and to keep the same in proper repair, but that the stacker fur-uished by defendant was worn and defective and was too weak to perform the work for which it was intended. Defendant denied this and alleged that the said stacker was, in all respects, a safe
“That said stacker was more particularly defective in that the headblock of the loading arms was too weak to support the loading arms as they were raised and lowered. * * * That the head-block of the loading arms of said haystacker broke -and caused the loading arms of the haystacker to fall onto plaintiff.”
This allegation is not only meaningless when applied to the facts in the case, but it is without any support whatever in the evidence; but, after the evidence was all in, for the purpose of making' the complaint conform to the testimony, plaintiff filed an amended complaint in which he alleged:
“That the defendant failed to so'.keep the said haystacker in a reasonably safe and suitable condition and state of repair, but negligently and carelessly permitted the same to become worn and defective, and particularly the eye-bolt which attached to the head or crossbar of the base of the haystacker, — that is, the crossbar which would be nearest to the stack when the haystacker was in operation; and that this crossbar or sill at the base of the hay-stacker had become worn on the inside by reason of the constant pulling .and strain upon the eyebolt, so that the nut which was attached' to the lower end of the bolt on the inside of the headbar or sill at the base of the machine had worn into, the wood on said cross-sill or crossbar so as to .permit of some play and to permit the bolt itself to draw up through the wood to such an extent that the open end of the bolt become pulled out of the hole in which it was usually kept, which hole was upon the upper side of said s-ill; and that the said' eyebolt was made of about one-half inch iron and had 'become considerably worn in the upper part of said hook where the pulley was attached or hooked in, and that by reason of said worn condition of said hook on account of the constant friction and wearing of it by the eyebolt and the pulley had become worn away and weakened to such an extent that the same straightened out and permitted the pulley to slide, which permitted*367 the arms and forks of said haystacker to fall to the ground and to fall .upon this plaintiff.”
And further alleged that:
It was “wholly on account of defendant’s negligence in permitting the said hook or eyebolt of the said crossbar on the base of said machine to become worn and weak, as hereinbefore particularly stated, that the said haystacker broke and the said eyebolt broke and -straightened out so as to permit the pulley to slide, thereby loosening the ropes which held up -the .arms which were -attached to said base of said haystacker and permit them to fall upon.the plaintiff.”
.Upon this issue, the court instructed the jury'as follows.:
“You are therefore instructed that, unless y-o-u find from the evidence that the defect in the eyebolt or hookbolt which caused the accident resulting in the injury was such as could have been discovered by the defendant by the exercise of reasonable care and diligence, the plaintiff cannot recover, and your verdict must be for the 'defendant.”
This limited- the -consideration of the jury to- the alleged weakness of the eyebolt as the cause of the injury. Upon this question, the evidence shows that this bolt (or -hook) was made of half-inch iron; that it passed through the crossbar of the frame and was hel-d in pla-c-e -by a washer and nut on the under side. Whether the end of the -bolt that formed the book (or -eye) was -drawn into the wood far -enough to prevent, or help- to prevent, the hook from straightening ou-t, as is alleged in the amended complaint does not appear from the evidence; but it does appear that the inner side of the -eye had been- -worn away, to- some extent, by the wearing and jerking of the hook on the pulley, and that, because of such jerking, the nut and washer had w-o-rn into the wood on the under side of the cross bar so that the bolt was loose and “wobbly” in the hole. It -does not appear that the latter -condition would tend to weaken the hook on- the bolt, but it is- -self-evident that to the extent to which the hook (or eye) on the bolt had been worn away by the hook on the -pulley, to just that extent it had become weakened. Both these -conditions had become apparent to, and had been noticed- by, certain of defendant’s employes -prior to the accident ; but such conditions do not appear to have been known by,, or to have been called to'the attention of, the plaintiff.
We believe this case comes within the rule announced by us in Iverson v. Look, 32 S. D. 321, 143 N. W. 332. In that case, it is said:
“It was incumbent upon defendant to take such reasonable and needful precautions in regard to the machinery being used by the plaintiff as would not subject him to needless or useless -exposure to danger.”
If this rule is correct — and it is sanctioned by the highest court in the 1-an-d— defendant was guilty of negligence in failing to keep the stacker in question in. a proper and safe state of repair. Mather et al. v. Rillston, 156 U. S. 391, 15 Sup. Ct. 464, 39 L. Ed. 461.
Defendant took numerous exceptions to the instructions given the jury by the trial -court, and also to the refusal -to give other
Failing to- find any prejudicial error in the record, the judgment and order -appealed from- are affirmed.