(dissenting).
It is impossible for me to agree with the reasoning set forth or conclusions reached by the majority in this case, particularly with reference to the matter of liability on the part of defendant Swenson. I therefore have no choice but to dissent.
Certain established principles which should govern appellate review in cases of this nature are:
(1) The trial court’s findings of fact have the standing of a special verdict equivalent to that of a jury and will not be disturbed if supported by substantial evidence. Also, we view all evidence presented in that light most favorable to the judgment of the trial court, in this case most favorably to plaintiff. Rule 344(f)(1), R.C.P.; Dailey v. Holiday Distributing Corporation, Iowa, 151 N.W.2d 477, 483; and Marean v. Petersen, 259 Iowa 557, 144 N.W.2d 906, 909.
(2) Generally, questions of negligence,, contributory negligence and proximate cause are for the jury (trier of the facts); it is only in exceptional cases that they may be decided as matters of law. Rule 344(f) (10), R.C.P.
(3) Credibility of the witnesses and weight to be given their testimony should here rest with the trial court, not with us. Verschoor v. Miller, 259 Iowa 170, 143 N. W.2d 385, 389.
The factual situation as described by the majority is substantially correct, but the findings based on those facts, adverse to plaintiff, are for the most part, in my humble opinion, either without foundation or a de novo substitute for those reached by the trier of the facts.
Illustrative is the statement made in the majority opinion to the effect that at time of accident the wagon was about one-fourth unloaded, and if so it was not overloaded at time of the accident. I submit this is a sup-positional conclusion not borne out by the-record.
Actually the evidence discloses the wagons here concerned are equipped with a steel cleated belt-like apron at the bottom which moves the load of silage forward to where it is engaged by the beaters.
*772This factually means the load normally moves forward en masse, neither feeding off the top nor the bottom. As a result, an overloaded wagon remains so from start to finish.
Also, on this matter of overloading, the record reveals plaintiff testified defendant Swenson, after the accident, twice admitted it was his fault because he had overloaded the wagons. The trier of the facts apparently accepted that statement as true.
Throwing some additional light on this subject, the discovery deposition of defendant Evenson, received in evidence, discloses that in his opinion the size of the loads would be called overloading. He also said overloading has a tendency to throw excess silage down on the conveyor or over the outside of the box, excess silage thrown on the conveyor can plug up the conveyor belt, and under these circumstances the conveyor belt would still operate but the silage would just stick in there.
The record also reveals defendant Swen-son, working in the field, decided when the wagons were filled. However, as a witness he denies the wagons were overloaded, could not recall any complaints made by plaintiff, and does not believe he ever said the accident was his fault.
The trial court found plaintiff to be a truthful person, one who would not deviate from the truth in the slightest degree to serve his own purpose, and accorded a great deal of weight and credence to his testimony. Apparently the majority does not entirely agree.
I. One of the real issues presented in plaintiffs action against Swenson, his employer, is whether overloading the wagons was a proximate cause of the accident.
By his answer Swenson denies any overloading. As affirmative defenses he asserts plaintiff assumed risk of danger in attempting to clean silage from the conveyor mechanism while in operation, and was con-tributorially negligent. The burden of proof was upon Swenson to prove these defenses by a preponderance of the evidence. See rule 344(f)(5), (6), R.C.P., and Erickson v. Erickson, 250 Iowa 491, 495-499, 94 N.W.2d 728.
The trial court found Swenson failed to meet this burden. The majority now holds otherwise.
Although the case of Frederick v. Goff, 251 Iowa 290, 100 N.W.2d 624, involved defective machinery, the principles of law there expressed are here applicable and in large part determinative. For that reason I shall quote extensively from the cited case, referring to it occasionally as Frederick.
II. Dealing with the matter of assumption of risk this court said in Frederick, supra, loc. cit., 251 Iowa 296, 100 N.W.2d 628: “ * * * we think assumption of risk does not appear as a matter of law and it was proper to submit this issue to the jury. It is an affirmative defense and the burden to prove it rested upon defendant. Erickson v. Erickson, 250 Iowa 491, 498, 94 N.W.2d 728, 732, and citations; Jackson v. Chicago, M., St. P. & P. R. Co., 238 Iowa 1253, 1261, 30 N.W.2d 97, 102, and citations. It is seldom a party who has the burden on such an issue establishes it as a matter of law. Jackson case and citations; Ruble v. Carr, 244 Iowa 990, 993, 994, 59 N.W.2d 228, 230, 231, and citations.
“If defendant was negligent in the respect alleged plaintiff did not assume the risk of injury therefrom by continuing in the work unless in the usual and ordinary course of his employment it was his duty to repair the equipment or remedy the defect therein, and even if such were his duty, he assumed no risk therefrom unless the danger from its use was imminent so a reasonably prudent person would not continue in the work. Section 88.14, Code, 1958, I.C.A., quoted in Erickson v. Erickson, supra, at page 501 of 250 Iowa, page 733 of 94 N.W. 2d, as construed by the Erickson decision and others therein cited, so provides. Johnson v. Kinney, 232 Iowa 1016, 1020, 7 N.W.*7732d 188, 191, 144 A.L.R. 997, 1001, and citations. This statute states it is not to be construed to include risks incident to the employment.”
Assumption of risk not only presupposes some danger but a reasonable opportunity to ascertain the nature of the risk and an appreciation of that risk. See Marean v. Petersen, 259 Iowa 557, 144 N.W.2d 906, 912-913; Pierce v. United States, D.C., 142 F.Supp. 721, 727, Aff’d., 235 F.2d 466; Restatement, Second, Torts, section 496D; and Prosser, Law of Torts, Hornbook Series, Third Ed., pages 461-468.
Factually the record discloses that when plaintiff first realized Evenson was not going to help unload, the latter was 20-30 rods away, the machinery was making considerable noise, and neither Swenson nor anyone else was available to whom he could report or turn for help. Furthermore, Evenson had been gone only about three minutes before the accident occurred.
I am satisfied assumption of risk is not shown here as a matter of law. By the same token it cannot logically be said the trial court erred in concluding, as trier of the facts, this defense was not established by the requisite degree of proof. See rule 344(f)(5), (6), (10), R.C.P., and Oltmanns v. Driver, 252 Iowa 1066, 1074, 109 N.W.2d 446.
III. Neither is it apparent to me, as a matter of law, plaintiff was contributorially negligent or that the trial court erred in concluding the evidence failed to support this affirmative defense. Reference is again made to rule 344(f)(5), (6), (10), R.C.P.
Section 463, Restatement, Second, Torts, defines contributory negligence as, “ * * * conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff’s harm.” See also Marean v. Petersen, 259 Iowa 557, 144 N.W.2d 906, 912, and Cronk v. Iowa Power & Light Co., 258 Iowa 603, 614, 138 N.W.2d 843.
Of course, since we are here dealing with an action by an employee against his employer contributory negligence, if established, goes only to mitigation of damages and would in no event bar the employee’s right of recovery. Rule 97, R.C.P.
On that point, Frederick, supra, loc. cit., 251 Iowa 297-298, 100 N.W.2d 629 states: “Since this is an action by an employee against an employer to recover for negligence plaintiff was not required to plead or prove his freedom from contributory negligence but defendant might plead and prove contributory negligence in mitigation of damages. Rule 97, Rules of Civil Procedure, 58 I.C.A., Erickson v. Erickson, supra, 250 Iowa 491, 495, 496, 94 N.W.2d 728, 730, and citations. Defendant’s answer alleges the injury was caused, or contributed to, by plaintiff’s negligence. The trial court submitted to the jury the issue of plaintiff’s contributory negligence in mitigation of damages. This was proper. Johnson v. Kinney, supra, 232 Iowa 1016, 1020, 7 N.W.2d 188, 191, 144 A.L.R. 997, 1002, and citations.”
The trial court found, as a fact, plaintiff was not contributorially negligent. With this finding we should not interfere.
IV. In so determining the issue of contributory negligence I am not unmindful of the fact a relatively small metal plate affixed to the subject chuck wagon provided in part:
“BE CAREFUL
* * *
2_ * * *
3. When mechanism becomes clogged disconnect power before cleaning.
4. * * *
5_ * * *»
But this alone should not serve to preclude recovery in the instant case.
*774Ordinarily, in order to be sufficient, a warning or instruction should be so plain or explicit the servant will understand and, appreciate the danger, know how to avoid it by the exercise of reasonable care, and where extraordinary risks may be encountered the servant should be warned of their character and extent as soon as possible. A mere general warning of dangers to be encountered by the servant is not sufficient, and an insufficient warning is in legal effect no warning at all. A warning or instruction as to certain dangers is not sufficient to put the servant on notice as to other danger or varying perils. See Oklahoma Natural Gas Co. v. Walker, Okl., 269 P.2d 327, 331-332; Beaumont, S. L. & W. Ry. Co. v. Schmidt, 123 Tex. 580, 72 S.W.2d 899, 902; Sadler v. Lynch, 192 Va. 344, 64 S.E.2d 664, 666; and 56 C.J.S. Master and Servant § 290, page 1052. And see Schilling v. Roux Distributing Co., 240 Minn. 71, 59 N.W.2d 907, 917-918, and Blue v. Drackett Products Co., Fla.App., 143 So.2d 897, 899.
The record affirmatively reveals plaintiff did not attempt to physically clean the mechanism As disclosed infra, he reacted to the stimulus of the moment and rather than attempt to clean out material clogged in the mechanism or box, pushed down on the protruding fodder under an apparent impression the machine itself would then start movement of the silage and effect a self-cleaning process. This it did with the result plaintiff’s right hand was caught in the machinery.
Admittedly an employer is under no duty to warn an employee of obvious dangers, hazards which should be reasonably appreciated, matters of common knowledge, or operation of natural forces in the performance of simple tasks. See Anderson v. Sheuerman, 232 Iowa 705, 710, 6 N.W.2d 125.
But here it cannot be said, as a matter of law, the danger was obvious, and in any event any peril existing was not attendant upon performance of a simple task.
A warning must be fair and adequate to the end a user, by exercise of reasonable care, is fairly and adequately notified of possible consequences attending the use of a given product or instrumentality.
Furthermore, presence of an ambiguous or uncertain warning by master to servant, like negligence, proximate cause and contributory negligence, is ordinarily an issue determinable by the trier of the facts. See rule 344(f) (10), R.C.P.; McGee v. Clearwater Mfg. Co., 214 S.C. 495, 53 S.E.2d 393, 395; and Hyland Hall and Co. v. Madison Gas and Elect. Co., 11 Wis.2d 238, 105 N.W.2d 305, 310.
In the instant case the warning plate affixed to the wagon by the manufacturer, upon which Swenson apparently relies, was not as a matter of law so clear and certain as to include the danger consequent upon mere pressure on silage protruding from the conveyer- box. Under these conditions the matter of notice or warning was a matter determinable by the trial court. It should not be factually resolved by us on appeal.
Implied in the findings of fact and conclusions of the trial court is a finding the warning by the manufacturer, relied on by Swenson as aforesaid, was not so reasonably plain and explicit as to put plaintiff on notice of any danger attendant upon pressing down on the silage which protruded from the clogged conveyer box.
I submit, under the circumstances we are bound by this inherent finding.
V. Also, in my opinion, the trial court’s conclusion that negligence of Swenson in overloading the wagons was a proximate cause of the accident and plaintiff’s resultant injury, is both legally proper and supported by substantial evidence.
Of course, negligence itself is irrelevant in the absence of some causal connection between it and the injury.
*775In Frederick, supra, loc. cit., 251 Iowa 298-299, 100 N.W.2d 629, we stated on the matter of proximate cause:
“In considering the causal relation necessary to responsibility for negligence the general rules are set out in Restatement, Torts, sections 430 to 435. Christensen v. Sheldon, 245 Iowa 674, 682, 63 N.W.2d 892, 897, 48 A.L.R.2d 522.
“Section 431 of the Restatement says: ‘The actor’s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.’
“We have used this language quite similar to that just quoted: ‘Nor will the fact that some other cause operates with the defendant’s negligence to produce the injury relieve the defendant if the injurious result is traceable in some material degree to his want of due care [citations].’ (Emphasis added.) Swaim v. Chicago, R. I. & P. Ry. Co., supra, 187 Iowa 466, 471, 174 N.W. 384, 386, certiorari denied 252 U.S. 577, 40 S.Ct. 344, 64 L.Ed. 725. In considering the issue of proximate cause we have frequently cited the Swaim case with approval.
“Section 435, Restatement, Torts, provides : ‘If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.’ (Emphasis supplied.)
“Much the same thought is expressed in many of our opinions. Priebe v. Kossuth County Agricultural Ass’n., Inc., 251 Iowa 93, 100, 99 N.W.2d 292, 296, in referring to actionable negligence, states ‘it is not necessary that defendant could have foreseen the particular injury that resulted provided it should have foreseen its omission to act would probably result in injury of some kind to some person [citations].’ To like effect is Chenoweth v. Flynn, 251 Iowa 11, 16, 99 N.W.2d 310, 313; Gray v. City of Des Moines, 221 Iowa 596, 599, 265 N.W. 612, 613, 104 A.L.R. 1228, 1230; Godbey v. Grinnell Electric & Heating Co., 190 Iowa 1068, 1076, 181 N.W. 498, and citations. * * *
“Section 443 of the Restatement expresses the rule on which plaintiff places special reliance:
" ‘An intervening act of a human being or animal which is a normal response to the stimulus of a situation created by the actor’s negligent conduct, is not a superseding cause of harm to another which the actor’s conduct is a substantial factor in bringing about. (Emphasis supplied.)
“‘Comment: a. The rule stated in'this Section applies * * * to acts done by the person who is harmed * * *. It is not necessary that an act which is done by the person harmed or by a third person should be “reasonable”; that is, that the act should be one which a reasonable man would regard as not involving an unreasonable risk to himself or others. * * * If it be done by the person who is harmed and is unreasonable in the sense above stated, it may amount to contributory negligence which as such prevents him from recovering (see section 467), but the actor’s negligent conduct is none the less the legal cause of the harm. * * *.’
“Comment b under section 443 further clarifies what has just been quoted. To like effect are section 447(c) and Comment h thereunder.
“We find little dissent from recognition by the courts of the rule expressed in section 443, Restatement, Torts. We are not persuaded we should disagree with it. The rule appears to be applicable here and to support submission to the jury of the issue of proximate cause.” See also Restatement, Second, Torts, sections 440-443 and 447.
In the case at hand Swenson alone determined when the wagons were ready to be *776hauled to the silo. And reasonable minds could conclude clogging- of the conveyer box was traceable in some material degree and attendant to lack of due care by this defendant in overloading.
As previously indicated, the fact that Swenson may not have foreseen the specific harm which could and did result does not negate the fact that overloading was a substantial factor in bringing about the injury which ultimately resulted to plaintiff.
And, as heretofore disclosed, the consequence of a negligent act need not he foreseen, it being sufficient if the injuries resulting are the natural, though not a necessary or inevitable result of the wrong.
In the instant case the evidence created a jury issue as to proximate cause which was resolved adverse to defendant Swenson by the trier of the facts. Under the circumstances this determination should be binding upon us. See rule 344(f) (10), R.C.P.; Cronk v. Iowa Power & Light Co., supra, loc. cit., 258 Iowa 613, 138 N.W.2d 843; Lockwood v. Wiltgen, 251 Iowa 484, 489-491, 101 N.W.2d 724; Chenoweth v. Flynn, 251 Iowa 11, 16-18, 99 N.W.2d 310; Bell v. Brown, 214 Iowa 370, 377, 239 N.W. 785; and Prosser, Law of Torts, Horn-book Series, Third Ed., pages 290-291.
VI. The majority, as heretofore stated, factually determines plaintiff put his arm in the beater area. This view apparently stems from Swenson’s claim the plaintiff was injured in a manner physically impossible under the evidence. In taking that position he attempts to invoke the physical fact rule.
This contention appears to be based on the theory the trial court inferentially found plaintiff did not voluntarily place his hand and arm into the conveyer box where the beaters are located. Seemingly Swenson argues the physical facts disclose otherwise.
At the outset I am persuaded the physical fact rule, even if applicable, is of no benefit to this defendant.
In Stevens v. Gear, 240 Iowa 1348, 1353, 39 N.W.2d 408, 412, this court said: “The ‘physical fact rule’ is well-established and sound. But it applies ‘only where the existence of such facts and their connection with the question at issue, is established or admitted; and proof of such nature cannot be construed to establish a particular conclusion as a matter of law unless the facts and circumstances lead to but one conclusion to the exclusion of all others32 C.J.S. Evidence § 1031, page 1074.” (Emphasis supplied.)
Repetition of the evidence as to plaintiff’s actions immediately prior to the accident is unnecessary. Briefly stated it does not disclose, as a matter of law, plaintiff did anything other than as he testified, and the facts do not unavoidably lead to a conclusion, to the exclusion of all others, he placed his hand in the mechanism or conveyer box.
It is just as reasonable to assume his pressing down on the protruding silage caused that located inside the enclosure to be loosened thereby freeing the beaters which then, pushing downward, created a pulling force on the protruding material akin to a suction action, which in turn caused the silage plaintiff was pressing upon to be pulled momentarily inward, taking with it plaintiff’s hand and arm.
Nothing disclosed in the record makes plaintiff’s version of the accident impossible or improbable. Neither does it serve to make the trial court’s conclusions on this subject erroneous.
VII. No apparent useful purpose will be served by engaging in an extended discussion of the majority opinion holding defendants Juveland and Evenson not liable as a matter of law.
I would affirm, at least as to the judgment entered against defendant Swenson.
GARFIELD, C. J., and MASON and BECKER, JL. join in this dissent.