Bird v. Hart-Parr Co.

• Decision Date: 24 March 1914
• Citation: 146 N.W. 74,165 Iowa 542
• Parties: M. C. BIRD, Appellee, v. HART-PARR COMPANY, Appellant
• Court: Iowa Supreme Court

146 N.W. 74

165 Iowa 542

M. C. BIRD, Appellee, v. HART-PARR COMPANY, Appellant

Supreme Court of Iowa, Des Moines

March 24, 1914

Appeal from Floyd District Court.--HON. C. H. KELLY, Judge.

ACTION at law by an employee of defendant company, to recover damage for personal injuries received by him in falling into a scale pit which it claimed defendant left open and unbarricaded about the place where plaintiff was working. Trial to a jury. Verdict and judgment for plaintiff in the sum of $ 6,000, and defendant appeals.

Affirmed.

Ellis & Ellis and Senneff, Bliss & Witwer, for appellant.

Frank Lingenfelder and Blythe, Markley, Rule & Smith, for appellee.

DEEMER J. LADD, C. J., and GAYNOR and WITHROW, JJ., concurring.

OPINION

DEEMER, J.

The defendant is engaged in the manufacture of gasoline engines in the city of Charles City, Iowa and maintains a foundry and machine shops in said city. Plaintiff entered defendant's employ in May of the year 1909, and continued therein until December of the same year, when he received the injuries of which he complains. The foundry in which plaintiff worked was south of the machine shop, and there was an alley between the two buildings, and in this alley was a platform pit scale. On the day plaintiff was injured this scale had gotten out of repair, and two of defendant's employees were directed to fix it. To do this, they had to take up some or all of the boards making the platform. The men were told that when they left the scale at night they should put some planks across the rails, and also put up a warning light. It is claimed by plaintiff that neither of these things was done, although upon this point there is a sharp dispute in the testimony.

Plaintiff went on duty at six p. m., and was required to register in on a time clock in the machine shop. There was a door at the south side of the machine shop, and this opened outward and over the platform scale in the alley. According to plaintiff's testimony, he went to work a few moments before six, went into the machine shop and proceeded to the south door, opened it, and, as he turned to close it, fell into the scale pit which had been left open unguarded, and without adequate lights, sustaining the injuries of which he complains. He got out of the pit, walked to the defendant's superintendent, and stated that he would not work that night.

The pit was about eighteen inches deep. Plaintiff claims that when he fell he broke the tenth rib of his left side, and that, as a result, adhesions formed, which caused serious and permanent injuries. He also claimed that two ribs on his right side were broken as a result of the fall.

The defendant filed a general denial, thus raising the issue of negligence and contributory negligence, and on these issues the case was tried to a jury, resulting in the verdict and judgment hitherto stated.

The propositions relied upon for a reversal do not involve the sufficiency of the testimony to sustain the verdict and only such reference will be made thereto as is necessary to a decision of the matters relied upon. In other words, there was sufficient testimony to justify a verdict for the plaintiff. Aside from a single ruling upon the introduction of testimony, appellant relies upon legal propositions raised by exceptions to the instructions given by the trial court, and its refusal to give certain instructions asked.

I. The ruling on the testimony appears in this quotation from the record:

Q. Doctor, what, in your opinion of the examination of the plaintiff, causes the pain at the point of fracture near the spine on the left side--the fracture of the tenth rib--that you mentioned. Mr. Senneff: We object to the interrogatory as calling for an opinion or conclusion of the witness, and as a matter not the proper subject of expert testimony, and basing it upon statements made by the plaintiff as to pain. By the Court: Well, he may answer that. (Defendant excepts to the ruling of the court.) A. I think the pain and tenderness are caused by adhesions below the rib on the inside of the chest bone. I have been unable to discover any disease of the spinal cord. Q. Now, Doctor, to what cause do you attribute, or did you in your examination of this man, the pain that was evidenced at this point of fracture, or near that. Mr. Senneff: We object to it as immaterial, and not a matter of expert testimony. By the Court: Well, he may answer that. (Defendant excepts to the rulings of the court.) A. I think the pain and tenderness are caused by adhesions below the rib on the inside of the chest bone. I have been unable to discover any disease of the spinal cord. Q. Now, Doctor, to what cause do you attribute, or did you in your examination of this man, the pain that was evidenced at this point of fracture, or near that. Mr. Senneff: We object to it as immaterial, and not a matter of expert testimony. By the Court: Well, he may answer that. (Defendant excepts to the ruling of the court.) A. Why, I attribute it either to the old inflammation, old inflammatory condition of the pleura, and to the involvement of the intercostal nerve at that point, either the bone formation or the adhesions and old scar tissue formed from the pleurisy in the pleura.

Each of the witnesses to whom these questions were propounded properly qualified as experts, and we think the testimony was properly received over the objections lodged to the questions. Erickson v. Barber, 83 Iowa 367, 49 N.W. 838; Cole v. Lake Shore R. R., 95 Mich. 77 (54 N.W. 638); Baltimore Co. v. Schultz, 43 Ohio St. 270 (1 N.E. 324); Carthage Co. v. Andrews, 102 Ind. 138 (1 N.E. 364, 52 Am. Rep. 653); Moyer v. Railroad, 98 N.Y. 645; State v. Glass, 5 Ore. 73; Johnson v. Railroad, 56 Vt. 707. Greenleaf on Evidence (15th Ed.) section 440, and cases cited.

II. The instructions given by the trial court on the question of contributory negligence read as follows:

Instruction No. 3. The plaintiff must also prove by the weight or preponderance of the evidence that he was not himself at fault or negligent as hereinafter explained.

Instruction No. 4. Negligence is the omission to do something which a reasonably prudent person, guided by those considerations which ordinarily regulate the conduct of human affairs, would do or doing which a reasonably prudent person would not do under similar or like circumstances.

Instruction No. 5. Reasonable and ordinary care and diligence is such care and diligence as an ordinarily prudent person would exercise under similar or like circumstances.

Instruction No. 6. If you find from the evidence introduced upon the trial under these instructions that the plaintiff exercised ordinary care, taking into consideration all the facts and circumstances connected with the injury as shown by the evidence, if you find that he sustained any injury, then he was not at fault or negligent. If, however, he did not exercise such care, and was negligent in any way, no matter how slight, and if, by reason thereof, any injury resulted to him, then he was guilty of contributory negligence, and he cannot recover in this action.

Instruction No. 7. Instructs that, if it was an accident, plaintiff cannot recover; and, further, 'defendant is not an insurer of the safety of its employees, and is only liable where injuries are incurred without fault on the part of the person injured, and because of negligence on the part of the defendant.'

Instruction No. 8. If you find from the weight or preponderance of the evidence introduced upon the trial that defendant failed to so do [exercise reasonable care, etc.], and that, because of such failure, plaintiff was injured, and that he was free from contributory negligence, then the plaintiff is entitled to recover, etc.

Instruction No. 9. In determining whether plaintiff was guilty of contributory negligence, it is proper for you to take into consideration all the facts and circumstances disclosed by the evidence in reference to the scale and the scale pit and its surroundings.

Particular complaint is made of the sixth and of the court's failure to give defendant's requested instruction No. 2, reading as follows: "If plaintiff was negligent in any way, no matter how slight, which negligence contributed to his injury, he cannot recover, even though you should find that defendant had been negligent." And also No. 5, requested by it, which reads: "In determining whether or not defendant exercised ordinary care, you must consider the nature of the place where plaintiff received his injury, the depth of the pit, and whether the same would appeal to an ordinary man as dangerous. You must also take into account, in determining whether or not defendant exercised ordinary care, the extent of the injury that the defendant might reasonably believe might occur by reason of the failure to guard the scale pit, if it did so fail." We may, for present purposes, eliminate this fifth request; for it has no bearing on the question of plaintiff's negligence.

The exact point made against the sixth instruction given is that thereunder plaintiff's conduct could not be considered unless it were shown that by reason thereof injury resulted to him. Reliance for this claim is placed upon Deeds v. Railroad, 69 Iowa 164; Banning v. Railroad, 89 Iowa 74; Rietveld v. Railroad, 129 Iowa 249; Jerolman v. Railroad, 108 Iowa 177; and other like cases. If the instruction were susceptible of the construction placed upon it by appellant's counsel, to the effect that plaintiff's negligence, to defeat him, must have been the sole cause of the injury, it would unquestionably be bad. But it does not so state, unless it be by the barest inference. The true rule is that plaintiff's negligence, if there be any, will not defeat him unless it be such as...