Brooks v. W.T. Joyce Co.
| Decision Date | 08 April 1905 |
| Citation | 103 N.W. 91,127 Iowa 266 |
| Parties | J. F. BROOKS, Appellant, v. W. T. JOYCE CO |
| Court | Iowa Supreme Court |
Appeal from Carroll District Court.--HON. F. M. POWERS, Judge.
ACTION to recover damages for personal injuries received while in defendant's employ. At the conclusion of the evidence for the plaintiff, the court, on motion, directed a verdict for the defendant. Plaintiff appeals.
Affirmed.
George W. Bowen and M. W. Beach, for appellant.
Lee & Robb, for appellee.
The defendant company is carrying on the business of selling lumber at Carroll, Iowa; and plaintiff, at the time of receiving the injuries complained of, was a workman employed about its yards. Under the instruction of one Brown who had charge of the work in the yard under the direction of the defendant's superintendent, plaintiff was engaged in loading a wagon with bundles of maple flooring being taken from a pile of such lumber, and while thus engaged he was injured by bundles from the pile falling against him and breaking his leg. The negligence charged is that the bundles of flooring were piled up without crosssticks, which would have rendered the pile firm and secure, and which was the usual way of piling such lumber. It is claimed for the defendant that the defective piling of the lumber was the result of the negligence of a co-employe; that the danger was open and apparent to the plaintiff, and was assumed by him and that plaintiff was guilty of contributory negligence.
The argument for appellant is largely directed to the proposition that the negligent piling of the lumber was not merely the act of a co-employe, but was chargeable to the defendant as a failure to provide the plaintiff with a safe place to work. We are inclined to think that this contention is sound, for, if defendant allowed its piles of lumber to be so made and kept as to constitute a menace to the safety of employes, it could hardly be permitted to say that the piling was originally done by its employes, for whose negligence it would not be responsible.
But the motion to direct a verdict was also based on the grounds of assumption of risk by plaintiff, and contributory negligence on his part; and, as the motion was sustained generally, if either of these two grounds was sufficient the judgment of the lower court should be affirmed, although another ground of the motion which may have been relied upon in argument in the lower court was not sufficient. We must consider, then, whether the evidence shows beyond controversy that plaintiff had assumed the risk of the defective piling of the lumber, or showed freedom from contributory negligence in attempting to take lumber from the pile, as he did, at the time of the injury.
Plaintiff had been in the defendant's employ about its yards for many years, and was familiar with the usual method of piling lumber. He testifies that it was unsafe and unusual to pile up these bundles of hardwood flooring without cross-sticks to hold them together; that, if cross-sticks had been used, that fact would have been readily apparent to him; that he went past this pile of flooring many...
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