(dissenting) — While recognizing that I must be in error, I cannot in good conscience join my colleagues in the majority opinion and therefore feel compelled to set forth my reasons, briefly.
As stated in the majority opinion, “the single charge of negligence submitted to the jury against North American is in designing a machine containing latently dangerous conditions capable of injury to a person working about it when, in the exercise of reasonable care, it was feasible to shield said danger without materially interfering with the function of the machine.” This specification is in accordance with the present *699Iowa law, which, will be broadened by the apparent approval of the- language of section 395, Restatement of. Torts. •
I agree' there is evidence from which the jury could find the Grain-o-vator was negligently designed. I am not convinced the jury could properly find plaintiff did not know -of the condition. There is much in his testimony to indicate knowledge, including his statements on direct examination:
“When I started around the wagon I tripped and fell. I was pretty close to the Grain-o-vator when I tripped. I was just far enough away to- make sure I could cheek everything and not get tangled up in it. I was being careful.”
I could, however, accept the majority’s view that a jury question was presented on his knowledge and do- not base my dissent upon this proposition, but rather upon my view that a latently dangerous condition in the design could not possibly have been a proximate cause of plaintiff’s injury.
The record is clear that plaintiff tripped over something and as he fell his arm inadvertently became entangled in the moving bars on the rear of wagon which were covered only to the extent described in the majority opinion. There is nothing in the record to indicate he placed his arm in this position because he did not know the bars were uncovered or would not have placed his elbow where he did had he realized the bars were uncovered. His elbow came in contact with the bars as a matter of chance in his reflex action in attempting to keep from falling. Plaintiff admits a warning sign would have been of no avail. Knowledge of the existing condition would have made no difference. His arm would still have become entangled. Since knowledge would have made no difference, negligence in designing the wagon with a latently dangerous condition could not possibly have been a proximate cause of the injury, for knowledge of the condition removes the latent danger.
The majority opinion holds there is a jury question as to Sandven’s negligence in failing to provide plaintiff a safe instrument with which to work and failing to warn him of the danger of using the Grain-o-vator. The arguments on proximate cause stated above apply with equal force to the failure to warn and will not be repeated.
*700In addition I am concerned about tbe obligation this decision places upon the farmer to furnish a safe instrument with which to work. The Grain-o-vator was in the same condition as delivered from the factory. No shields had been removed. No makeshift repairs had been made creating additional hazards. This decision will require the farmer to second-guess the manufacturer and to alter equipment, which after an accident appears to have been capable of safer design. He cannot accept the machine as delivered but must discover the need for and add additional safety protection.
In my opinion this is much too great a burden to place upon the average Iowa farmer. He should be able to rely upon the manufacturer who must have more experience and better facilities for testing and experimentation.
Even plaintiff’s expert, Dr. Norval Wardle, a safety agricultural engineer for Iowa State University, who testified it was feasible to design a shield over these parts which would not interfere with its operation, admitted that the identical machine has been used at the college for a year without shields. He said: “There is no shield in the rear. We did put some shields on the front end of the machine that were not provided. We put a cover on the power take-off, but there was no cover put on the rear of the machine.”
It places too great a burden on the farmer if a jury would be permitted to find he was negligent in not altering a machine from its delivered condition and in failing to add a safety device which a safety engineer looking for these very things felt no responsibility to install.