Taylor v. Bloodworth

Pope, Judge.

Appellant/plaintiff Fairow Taylor, Jr., appeals the grant of summary judgment to appellee/defendant Stewart I. Bloodworth, individually and d/b/a Bloodworth Farms in this action for negligence. Taylor was seriously injured when he came in contact with a grain auger on the Bloodworth farm.

In January 1986 Bloodworth arranged with Dooly Farm Services, which employed Taylor as a truck driver, to deliver 6,000 bushels of feed corn to his farm. Taylor delivered approximately nine loads of corn to the farm. On Taylor’s first delivery, Bloodworth met him and showed where to back his truck. He then warned Taylor that the augers used to unload the truck were dangerous and he told Taylor that he would keep a man there at all times to operate the machinery and Taylor’s job was to dump the truck. Bloodworth told him that he had a friend killed by a similar piece of machinery and specifically told Taylor to stay away from the equipment.

Each unloading would take between 45 minutes and one hour. One man, a farm employee or Bloodworth, would set the gate on the *187back of the truck regulating the rate of flow of grain from the truck to the auger. Taylor would sit in the cab of the truck and raise or lower the body of the truck as needed to keep the flow constant. If the flow became too fast, the auger would bind. The day before the accident, a shear pin bolt on the auger had broken, apparently because of an overload. Bloodworth installed a new shear pin bolt and secured it with a double nut. Taylor was present when the repair was made.

On the day of the accident, Bloodworth’s employee, Jeff King, started the unloading and, as was customary, went to work grinding feed in a nearby building that was in sight of the auger. Taylor has no recollection of the accident; however, somehow his clothing became entangled with the auger and Taylor was pulled in and severely injured. Held:

We affirm. “Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one’s own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication . . . where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion the issue of assumption of risk may be determined on summary judgment.” (Punctuation and citations omitted.) Fagan v. Atnalta, Inc., 189 Ga. App. 460 (376 SE2d 204) (1988). “The business invitee on private premises assumes the risk of danger of which he knows . . . and fully comprehends, or which is sufficiently obvious. . . .” (Punctuation omitted.) Id. at 461.

At his deposition, Taylor testified that he was present the day before the accident when the shear pin bolt on the auger had broken. He watched as Bloodworth or one of his employees accomplished the repair of the broken shear pin bolt by replacing it with another bolt. Thus, it is uncontroverted that he had actual knowledge of the repair. Further, the record shows that Taylor was aware that he was hurt by something on the auger shaft, and that he was aware of the danger inherent in the machine.

The record also shows that it was not Taylor’s job to be around the auger. Both Bloodworth and King testified that Bloodworth warned Taylor of the danger inherent in the operation of the auger and instructed Taylor that Bloodworth or one of his men would set the gate on the truck to regulate the flow of grain to the auger. If the grain was unloaded too quickly, the auger would overload and bind causing the shear pin bolt to break, as had happened the day before the accident. It was not Taylor’s job or responsibility to regulate the gate controlling the flow of grain unloading. Bloodworth had an employee, King, on the site. After seeing that the unloading was begun properly, King went to work grinding feed in a building some 75 to 100 feet away, but within sight of the auger. He told Taylor to call him if the flow slowed down. King also testified that Taylor indicated *188to him that this was his last load of the day and that he was in a hurry to get finished. Bloodworth was aware that operation of the auger was a two-man job and had provided an employee to do the dangerous job. Taylor simply ignored Bloodworth’s and King’s instructions and attempted to do the operation alone, with disastrous personal consequences.

From these facts, we cannot help but conclude, as did the trial court, that Taylor assumed the risk of injury and that Bloodworth is entitled to summary judgment.

Judgment affirmed.

Deen, P. J., Birdsong, Sognier and Cooper, JJ., concur. Carley, C. J., McMurray, P. J., Banke, P. J., and Beasley, J., dissent.