Ray v. Downes

576 N.W.2d 896 (1998)

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Nature of the Case

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Facts

D hired P in May of 1995 as a farm laborer. P was 39 years old at the time and had many years of farm experience. D hired a custom harvester, John Wieczorek, to harvest his soybeans and corn. Wieczorek then assigned one of his employees to combine the fields and another, Waldner, to drive a large 18-wheeled semi-tractor/trailer (semi) from the fields to the storage bins on D's farm and unload the crops into the bins. Wieczorek's two employees spent approximately one-week harvesting soybeans. P was not directed by D to assist the harvesters but observed Waldner unloading the crops from the semi into the bins during the previous day's harvesting. Waldner would drive the semi close to the bin, get out of the semi and position a swing-type auger directly underneath the openings at the bottom of the trailer. The crops would then fall through the bottom doors of the trailer into the auger to be transported into the bins. The ground near one of the bins was too high to allow sufficient clearance to get the auger under the semi-trailer. D asked P to use a front-end loader to scrape smooth the ground near one of the bins so that the auger could be positioned. P scraped the ground and then volunteered to help Waldner position the auger under the trailer. P and Waldner agreed that Waldner would drive the truck and P would shove the auger underneath the trailer while the truck was moving. P would use hand signals and then 'holler' for Waldner to stop when the auger was in place. P positioned himself three to four feet in front of the protruding rear set of wheels on the trailer. When the auger was in position P 'hollered' for Waldner to stop. Either P did not signal or Waldner did not see P's signals or hear Ray 'holler' and the wheels of the trailer caught Ray's left foot and ran over his left leg. P brought a personal injury suit against Waldner and Waldner's employer Wieczorek (under respondeat superior principles). P alleged that D had maintained an unsafe workplace because the noise from the grain bin dryers prevented Waldner from hearing P's shouting to stop. The circuit court granted summary judgment in favor of Ds on the basis that P had assumed the risk of his injury based on his own admissions. P appealed.