Huggard v. Glucose Sugar Refining Co.

• Citation: 109 N.W. 475,132 Iowa 724
• Parties: A. P. HUGGARD, Appellee, v. THE GLUCOSE SUGAR REFINING CO., Appellant
• Decision Date: 24 October 1906
• Court: United States State Supreme Court of Iowa

109 N.W. 475

132 Iowa 724

A. P. HUGGARD, Appellee, v. THE GLUCOSE SUGAR REFINING CO., Appellant

Supreme Court of Iowa, Des Moines

October 24, 1906

REHEARING DENIED, FRIDAY, JANUARY 18, 1907.

Appeal from Scott District Court, HON. A. J. HOUSE, Judge.

ACTION to recover damages for injuries received by plaintiff while in defendant's employ due to the fall of a piece of gas pipe from an upper story of defendant's building upon him. There was a trial to a jury resulting in a verdict and judgment for plaintiff in the sum of $ 32,916, and defendant appeals. Affirmed.

Affirmed.

G. W Kretzinger, Murphy & Susemihl, and Cook & Dodge, for appellant.

Ely & Bush and M. J. Wade, for appellee.

OPINION

DEEMER, J.

That plaintiff received very serious and permanent injuries resulting from the fall of a piece of gas pipe while he was engaged in defendant's employment, producing practically complete paralysis of the lower half of his body, is virtually conceded, or at least established by the verdict of the jury upon sufficient evidence. Various rulings made by the court during the trial of the case below are complained of and it is also strenuously argued that the verdict has no support in the evidence, was the result of passion or prejudice, and that considering the whole record no judgment could legally be rendered against the defendant. We find something like twenty-four assignments of error in defendant's argument, the more important and controlling of which we shall consider during the course of this opinion. Claimed errors committed during the trial will first be considered. To this end a short statement of the facts relied upon by the plaintiff will be necessary.

In appellant's plant there were three or more buildings: One, the machine shop, in which was plaintiff's headquarters; another, what is called the "boneblack building," or "bone house," one hundred and fifty or one hundred and seventy-five feet from the machine shop; and the third, the refinery building between the machine shop and the boneblack building. Plaintiff received his injuries in the boneblack building. He had been in defendant's employ for something like two years, but, on account of injuries or illness, had been off duty from September 8th until October 13th of the year 1903. Plaintiff was employed as a machinist, and, at the time he received his injuries, was what was called "night machinist," compelled to go wherever directed by the superintendent, for the purpose of watching and reporting the condition of the machinery, and repairing or directing the repairs thereof. The "bone house," as it is called, had at least four floors, and in the basement thereof was a water closet for the use of employes. And nearly over this closet, directly over the pathway leading thereto, and in the first floor, was a hole or opening fourteen or sixteen by twenty-four or twenty-six feet. There was no second floor in the building, but in the third floor, and almost directly over the hole in the first floor, was another opening almost as large as in the one in the first. There was no corresponding opening in the fourth, or other higher floors. Upon the third floor, and close to this hole or opening, was a pile of ground bone, pieces of pipe, belting and other rubbish. While there was a necessity of these openings, for the purpose of installing machinery, that necessity in no matter prevented or interfered with the protection or guarding of the openings in carrying on the work at hand. There was also a closet on the first floor of the refinery building, but it was choked up and out of working order, and there was a closet in that building on the second or third floor; but there was no closet in the machine shop. On the night of November 14, 1903, plaintiff was working upon what are called "steep pans," on the first floor of the refinery building, and, while engaged in that work, was called to a closet three times during the evening, he having taken a physic some time before. On the last trip he went to the closet on the first floor of the refinery building, and finding it locked, started for the "bone house," and as he says "hustled too," passing in on the first floor going from that to the basement and thence to the water closet in the corner of that building, following what is claimed to have been the usual path, to that utility. While returning from the closet, following this claimed usual path, he was struck in the back by some hard substance, resulting in the injuries of which he complains. It is said that this hard substance was an iron gas or water pipe about three inches in diameter and twelve inches long, and that it fell from the third story of the building through the opening in that floor and the opening in the first floor. The negligence charged is leaving the openings in the floors without proper guards or barricades to prevent objects falling through the same. It is also claimed that the piece of iron pipe came from the third story of the building by reason of these openings, and of the failure to supply a guard. Defendant's answer was a general denial and also a plea of assumption of risk due to plaintiff's knowledge of the condition of the premises and of the openings in the floors. To this plaintiff replied that he had complained to defendant of the dangerous condition of the premises, and was promised and assured that the same would be remedied. The action is manifestly predicated upon the thought that defendant did not furnish plaintiff and its other employes a safe place to work.

One of the theories of the plaintiff was that the piece of pipe was in or upon a pile of bone dust upon the third floor, and that through the vibration of the building by wind, or the operation of the machinery, it was gradually moved toward the opening in the floor, and fell through, and it asked various witnesses as to the effect of the wind and of the operation of machinery upon the building and upon objects upon the floor of the third story. This was legitimate testimony, although there was no evidence that the plant was running that evening, or that there was any wind blowing. Rules of evidence are said to be based upon logic, and, if that be true, this testimony was clearly admissible in support of plaintiff's theory. While the wind may not have been blowing or the machinery running at the exact time the pipe fell, its effect upon objects upon the floor at other times was perfectly proper. It may have caused the pipe to roll too close to the edge of the opening, so that it fell by reason of the crushing down or removal of some small obstacle which held it temporarily. At any rate, this was proper evidence for the jury.

It seems that defendant made some tests as to the effects of vibrations upon a pile of bone dust and a piece of iron pipe for the purpose of showing that the pipe did not fall in the manner claimed. It offered to show the results of these tests, but was not permitted to do so. There was no abuse of discretion here. Such testimony which has been called experimental or demonstrative is not universally admitted. The matter of its admission rests very largely in the discretion of the trial court. Homan v. Franklin County, 98 Iowa 692, 68 N.W. 559; People v. Woon Tuck Wo, 120 Cal. 294, (52 P. 833). The trial court may well have found in this case that the experiment was too uncertain and inconclusive to justify the results thereof being admitted in evidence. R. R. Co., v. Mugg, 132 Ind. 168, (31 N.E. 564); McMurrin v. Rigby, 80 Iowa 322, 45 N.W. 877; Com. v. Allen, 128 Mass. 46, (35 Am. Rep. 356); Libby v. Scherman, 146 Ill. 540, (34 N.E. 801, 37 Am. St. Rep. 191). The conditions manifestly could not be accurately reproduced.

Plaintiff was asked if he relied upon the claimed promise to repair and was permitted over defendant's objections to answer that he did. The ruling was manifestly correct. This was a question of fact which could be proved in no other way. It was not, as defendant contends, the very issue upon which the jury was to pass, but if it were, the testimony was clearly admissible. Boddy v. Henry, 113 Iowa 462, 85 N.W. 771; Taylor v. Star Coal Co., 110 Iowa 40, 81 N.W. 249.

Plaintiff testified as to the condition of things on the third floor, shortly before he says that he complained to defendant's agent, and of the situation about five days before he was hurt. Other witnesses were also permitted to testify as to conditions before the injury. Under the record this testimony was clearly competent.

A witness was asked as to whether he saw any one go to the closet on the first floor of the refinery building on or before November 14, 1903. This was objected to, and the objection sustained. The ruling was right because indefinite as to time, if for no other reason. The witness further testified that he knew nothing of its condition on the day of the accident. There was no prejudicial error in rulings on evidence.

II. We come now to the instructions. Five of those given are complained of; and, of those refused, error is assigned as to but one.

The first instruction complained of related to plaintiff's duty to take another route in returning from the water closet, and left it to the jury to say whether, under all the circumstances, in the exercise of reasonable care and prudence, he should have selected another route, concluding with the statement that, if the jury found he should have taken another one, then he could not recover. The instruction was clearly correct in so far as it went; and defendant has no cause for complaint. Nothing said in Parkhill v Brighton, 61 Iowa 103, 15 N.W. 853, or Hartman v. Muscatine, 70 Iowa 511, 30 N.W. 859, runs counter to this. As we understand appellant, the contention here is not that the instruction...