Chicago & NW Ry. Co. v. Booten

• Decision Date: 26 April 1932
• Docket Number: No. 9284.,9284.
• Citation: 57 F.2d 786
• Parties: CHICAGO & N. W. RY. CO. v. BOOTEN.
• Court: U.S. Court of Appeals — Eighth Circuit

57 F.2d 786 (1932)

CHICAGO & N. W. RY. CO. v. BOOTEN.

No. 9284.

Circuit Court of Appeals, Eighth Circuit.

March 16, 1932.

Rehearing Denied April 26, 1932.

Wymer Dressler, of Omaha, Neb. (Robert D. Neely, of Omaha, Neb., and Samuel H. Cady, of Chicago, Ill., on the brief), for appellant.

Emmet L. Murphy, of Omaha, Neb. (Edward F. Fogarty, Herbert H. Meile, E. Melvin Kennedy, and K. G. Harvey, all of Omaha, Neb., on the brief), for appellee.

Before KENYON, VAN VALKENBURGH, and GARDNER, Circuit Judges.

KENYON, Circuit Judge.

Parties will be designated as in the trial court.

Defendant (appellant) was the owner of a grain elevator which it built just off its right of way in the city of Council Bluffs, Iowa, and leased to the Updike Grain Company. The last lease entered into between the parties, and which was in force at the time of the accident complained of in the instant case, the lease of November 23, 1928, contained, among others, the following provisions:

"Five. Lessee agrees to conform the business conducted upon said leased premises, and the operation thereof, to the laws relating thereto and to all requirements of any properly constituted public tribunal or officer, federal, state and municipal, and to the reasonable directions and requirements of insurance companies carrying insurance upon the premises or property thereon or therein. * * *

"Nine. Lessor agrees to keep the property leased in good and sufficient repair excepting unforeseen casualties but the Lessor shall not be required to renew, replace or repair any depreciation or wear caused by the operation of the business of Lessee on said premises."

In this elevator, cars of grain to be unloaded are run in on a track inside the elevator. Some 18 feet above the track, or some 6 or 8 feet above the top of the ordinary box car, there is a concrete platform which supports the machinery used for unloading. This platform is about 75 or 80 feet long, and some 7 or 8 feet wide. Along each side of the platform there is a hand-railing to prevent any one working on the platform from falling or stepping off. Access to the platform is had by an iron ladder placed at each end thereof.

Running the entire length of the platform are two revolving iron shafts, each about 2 and 15/16 inches in diameter, and each placed about 13 inches above the floor of the platform. Each shaft is held up off the floor by a series of bearings, some 8 feet apart, each of which is inclosed by a hollow concrete box, open at the top. Three of these boxes (three for each shaft; six in all) also contain drums around which cables are wound. Directly below these particular pairs of boxes the cars to be unloaded are placed. The cables are attached to mechanical shovels by which the grain is removed from the cars into the elevator. The machinery is automatic, so that when a man in the car below pulls on the cables, this causes the clutch on the drum to operate and pull up the shovel, thus unloading the car. The source of power for the whole operation is electricity, and the shafts by which the power is thus carried to the drums turn at the rate of some 60 to 70 revolutions a minute.

Each shaft is about three feet from the nearest handrailing; so that a person oiling the machinery has a three-foot space in which to stand, except where that space is narrowed very considerably by the concrete boxes containing the bearings and drums. Since the top of the boxing does not extend to a higher point than the center of the shafts, it is probably the fact that the boxing does not extend more than 15 inches at the most off the base of the platform. And the drums within the boxing clearly extend above the top of the boxing.

While there is thus a walkway in which a person may stand while oiling the machinery, the testimony shows that there never had been any guards or housing over any of the machinery except the drums; and that such guards as had originally been there, but had been since removed, were directed not so much to the purpose of safety in oiling, etc., as to the purpose of keeping the cables from slipping off of the drums.

At about 7 o'clock on the morning of January 15, 1930, plaintiff, an employee of the Updike Grain Company, went upon the platform for the purpose of oiling the machinery. At that time the east shaft (the platform runs north and south) was not turning at all, and plaintiff proceeded along the west walkway from north to south, washing the drums with coal oil, and oiling the bearings as he proceeded. As he reached the box containing the third and final drum, the accident complained of in the instant case happened to him. His clothing was some way or other caught in the machinery, with the result that it was wound around the west shaft, breaking his arm and leg and causing the injuries complained of.

Just before the shaft entered this particular concrete box, there was around it an iron collar out of which a piece was found to have been broken. There is a possibility that the broken edge of the collar is what first caught plaintiff's clothing, for it is difficult to see how clothing could have been caught on a plain round shaft; although it seems that the only place where rust was wiped off of the shaft as a result of the accident was some 8 or 10 inches north of where the collar commenced. The District Court instructed the jury that liability in the instant case could not be based on the fact of the broken collar. He instructed the jury that the only basis of liability was whether "Said defendant negligently failed to place a guard on or about said revolving shaft as required by the laws of the State of Iowa as hereinabove set out, either at or prior to its leasing of said premises to said defendant Grain Company or at any other time." The jury returned a verdict for plaintiff, and judgment was entered thereon.

The statute of Iowa which plaintiff claims defendant violated is chapter 73 of the Iowa Factory Act, section 1487, Code of Iowa, 1927, which is as follows: "Safety appliances — guarding machinery. It shall be the duty of the owner, agent, superintendent, or other person in charge of any workshop, manufacturing or other industrial establishment or concern operated by machinery, either in a fixed location or when portable and moved from place to place therein in carrying on such industry, so far as practicable, to install and keep in order belt shifters or other safe mechanical means for throwing belts on and off pulleys, install loose pulleys, and protect, by guards or housing, all gearing, cogs, belting, shafting, tumbling rods, universal or knuckle joints, set screws, saws, planes, and other machinery, when so located or used that employees may receive injury thereby. The provisions of this chapter shall not apply to agricultural pursuits."

While many questions are raised in the assignment of errors, two important and controlling ones should receive major attention, viz.: (1) Was there a duty incumbent upon defendant under the statute of Iowa above quoted to house or guard the machinery at the point where the accident occurred? (2) Did the District Court commit reversible error in the exclusion of testimony offered bearing on the question of whether it was practicable to install guards or to house the machinery at the place of the accident, and whether such place was one where "employees may receive injury"?

It is insisted that plaintiff as a matter of law was guilty of contributory negligence. The question of contributory negligence under all the facts and circumstances shown in this record is so clearly one for the jury that we shall spend no time on it. United States Gypsum Co. v. Karnaca (C. C. A.) 216 F. 857; Wheeler v. Sioux Paving Brick Co., 162 Iowa, 414, 142 N. W. 400.

The serious question in the case is the applicability of the statute hereinbefore quoted to the situation presented. If the injury occurred at a place where there was probability of an employee of the grain company receiving injury, and if it was practicable in carrying on such industry to protect employees against dangers by guards or housing at such place, then was there a duty upon the part of the owner of the premises to install protective appliances, and keep the same in order? If there was, the failure to perform such duty was negligence, and if this was the proximate cause of the injury to plaintiff defendant would be liable, provided plaintiff was not guilty of contributory negligence.

The attempt here is to fasten liability on an owner not actively operating the plant, but who has leased the same to an elevator company, with the agreement in the lease to keep the property in sufficient repair.

The general rule as to liability in the relationship of landlord and tenant is expressed in two Iowa cases as follows: Morse v. Houghton, 158 Iowa, 279, 136 N. W. 675, 676, "A landlord is not liable for injuries to a tenant resulting from alleged negligent construction, which was in no wise concealed from or misrepresented to the tenant at the time of the letting," and Updegraff v. City of Ottumwa et al., 210 Iowa, 382, 226 N. W. 928, 929, 930, "The law is doubtless well settled in this and most, if not all other, jurisdictions that the landlord who has parted with full possession and control of his premises by lease to a tenant is not liable for injuries to third persons caused by the negligence of the tenant. * * * But, on the other hand, if the nuisance exists at the time the lease is executed, a covenant therein requiring the tenant to make repairs at his own expense will not relieve the landlord from liability for injuries occasioned thereby." See, also, Holton v. Waller et al., 95 Iowa, 545, 64 N. W. 633; Flaherty v. Nieman, 125 Iowa, 546, 101 N. W. 280; Morse v. Houghton, 136 Iowa, 279, 136 N. W. 675; Fraser v. Kruger et al. (C. C. A.) 298 F. 693; Doyle v. Union Pacific Railway Co., 147 U. S. 413, 13 S. Ct. 333, 37 L. Ed. 223.

This case is not based on the ordinary...