Beardsley v. Murray Iron Works Co.

• Decision Date: 15 February 1906
• Citation: 106 N.W. 180,129 Iowa 675
• Parties: BEARDSLEY v. MURRAY IRON WORKS CO.
• Court: Iowa Supreme Court

129 Iowa 675

106 N.W. 180

BEARDSLEY

v.MURRAY IRON WORKS CO.

Supreme Court of Iowa.

Feb. 15, 1906.

Appeal from District Court, Des Moines County; W. S. Withrow, Judge.

Action for damages resulted in a judgment against the defendant, from which it appeals. Affirmed.Seerley & Clark, George S. Tracy, and S. K. Tracy, for appellant.

E. L. Hirsch, for appellee.

LADD, J.

The defendant's machine shops are located at the corner of Central avenue, extending east and west, and Washington street, in the city of Burlington. A short distance north of the corner the right of way of the Chicago, Burlington & Quincy Railroad Company passes through its property. The part of the plant north of the road is called the “Corliss shop” and that south of it the “old shop.” The plaintiff had been employed in the old shop for about two months as helper to the machinists and to do whatever the foreman might direct. On the 8th day of September, 1903, he was instructed by said foreman to go to the Corliss shop and roll a fly wheel over to the old shop. One Schultz was sent to assist him. This wheel was 5 feet in diameter, with rim 12 1/2 inches wide, and weighed 1,185 pounds. The rim was crowned; that is, the center was 1/16 inch higher than the edges, so made the better to hold the belt in place. This had the effect, when the wheel was resting on the rim, to incline it to one side 9/16 of an inch. Neither of these men had ever had any experience in moving such a wheel. They rolled it out of the door of the Corliss shop safely on the sidewalk of Central avenue. There they swung it to the south. Both had their shoulders against the rim, pushing as well as steadying, when it got out of balance and fell on plaintiff's legs, breaking both of them below the knees.

The petition charges the defendant with negligence, stating five different grounds: (1) Failure to furnish safe means to do the work; (2) requiring it to be done by an insufficient number of men; (3) furnishing an assistant incompetent for the purpose; (4) leaving scraps of iron on the sidewalk, and thereby rendering it a dangerous place to work; and (5) omitting to warn plaintiff of the danger and to instruct him how to perform the task. All of these were submitted to the jury. The defendant insists that the evidence was not sufficient to sustain any of them. This contention is correct as to all save the last. We shall take them up in the order stated.

The evidence was to the effect that in wet weather such wheels were hauled from one shop to the other on trucks. But the sidewalk was dry and the sun shining on the day of the accident, and the evidence showing that two men could safely roll wheels from one shop to the other in dry weather was undisputed. More were required to remove larger wheels, but not those of the size of that in controversy. Even if more than two had been seen by one witness engaged in rolling such a wheel, this of itself was not evidence that a less number could not have done so safely. Nor did the statement of a witness that such wheels were generally moved on truck put in issue the testimony of three witnesses that this might be safely done in another way, namely, by rolling. This method had been followed for many years, and the evidence failed to show that it was not a safe and practicable method of performing the work. This disposes of the first two grounds.

The evidence tended to show that Schultz, who assisted plaintiff, had recovered from typhoid fever about five months previous to the accident, and, though able to sweep and to shovel coal, had not fully regained his strength. The jury might have found that this was known to defendant's foreman, but unknown to plaintiff. Even though all this be resolved against defendant, however, there is not a particle of evidence from which it might have been inferred that this contributed to the fall of the wheel. It was moved about 20 feet in the Corliss shop to the door on Central avenue, where there was an incline up to the sidewalk about 4 feet long and 12 or 14 inches above the level at the highest point. They rolled it back a little and then forward, thereby acquiring sufficient momentum, with their efforts, to roll it on the sidewalk. This walk was of brick and had become somewhat uneven, which, as Schultz testified, made the wheel topple. He was on the inside--that is, next to the building--and pushing with shoulder against the rim of the wheel and steadying it as best he could. Schultz testified: “After we got started toward the south with the wheel it got overbalanced. We tried to steady it, and Mr. Beardsley tried steadying it, and it fell across his feet. * * * I had hold of the wheel, and it did not fall on my side, but fell on plaintiff's side of the wheel, and he had hold of the side of the wheel that fell on him, and when he fell he had hold of the wheel and kind of drawed it over on him.” The plaintiff testified: “When we got out on the sidewalk we swerved the wheel to the south. I put my shoulder against the rim of it at the back of the wheel. I faced toward the building. I had the spoke that was pointing down. I had hold of the spoke and raised it gradually. I got a little west and noticed by my shoulder that the wheel was wobbling, and I got up around to see, and the east side was wobbling and I tried to steady it, and when I got there the wheel was falling. I made an effort to get away. I seen it was too heavy, that I couldn't do anything with it, and I stepped away from it. I stepped on something that seemed round to me, and my foot slipped out from under me. I still tried to get away after that. I did not get away, and the wheel fell.”...