Bruns v. North Iowa Brick & Tile Co.

• Decision Date: 10 May 1911
• Citation: 130 N.W. 1083,152 Iowa 61
• Parties: HORACE A. BRUNS v. NORTHERN IOWA BRICK & TILE COMPANY, Appellant
• Court: Iowa Supreme Court

130 N.W. 1083

152 Iowa 61

HORACE A. BRUNS v. NORTHERN IOWA BRICK & TILE COMPANY, Appellant

Supreme Court of Iowa, Des Moines

May 10, 1911

Appeal from Cerro Gordo District Court.--HON. J. J. CLARK, Judge.

SUIT to recover damages for personal injuries. Verdict and judgment for the plaintiff. The defendant appeals.

Affirmed.

Blythe Markley, Rule & Smith and Cliggett, Rule & Smith, for appellant.

Wade Dutcher & Davis and T. G. McDermott, for appellee.

OPINION

SHERWIN, C. J.

At the time he was injured, the plaintiff was employed by the defendant as a night pit foreman. He was an experienced hand and had worked in the same capacity in the same pit for several months before he was hurt, though for one week immediately prior thereto he had acted as day pit foreman. The day pit force had left an overhanging chunk of clay in the west bank of the pit, and it was while attempting to remove said chunk that the plaintiff was injured. The petition alleged negligence on the part of the defendant in failing and neglecting to properly light the pit and bank where the plaintiff was injured. The evidence shows that the pit was about twenty-five feet deep; that but one are electric light was used for lighting purposes; that this light hung on the east side of a pole that was about fifteen feet high and eighty-five feet from the bank where the plaintiff was at work. At the point in the bank where the plaintiff was injured, and about twelve feet from the bottom of the pit, there was a bench of clay three or four feet wide extending horizontally along the face of the bank. The lower part of the overhanging chunk of clay was a few feet above this bench and extended to the top of the pit bank. When the plaintiff was working under the overhanging clay preparing a blast to loosen it, it fell and caught him.

In its original answer, the defendant alleged, in addition to a general denial, that the plaintiff had assumed the risks incident to his employment. Under the rule of our cases, the pleading was not sufficient to put in issue the question of the plaintiff's assumption of risk arising from defendant's negligence. Martin v. Light Co., 131 Iowa 724, 106 N.W. 359.

Some three weeks after the verdict, but while a motion to set it aside was pending, the defendant filed an amendment to its answer curing the defect in its former pleading, and this amendment was stricken from the files on the plaintiff's motion. The case seems to have been tried on the theory that the question of the plaintiff's assumption of risk of defendant's negligence was in issue, and in our judgment the amendment did no more than conform the pleadings to the theory upon which the trial had proceeded and the proof and might have been allowed to stand. But, however this may be, the ruling is not prejudicial to the defendant because we shall treat the case as it was tried and presented to the jury by the instructions.

While other questions are argued with much force, the serious questions presented by the record are two: First, did the plaintiff assume the risk of working without more light? and, second, was the failure to furnish more light the proximate cause of his injury? The appellant says that the risk was assumed for the reason that plaintiff, when injured, was engaged in the work of making a place safe that he knew to be dangerous, and the rule that where an employee is engaged in making a dangerous place safe, or when the place becomes unsafe by reason of the work that he is doing, the master is not liable, is relied upon by the appellant.

While it is the general rule that the servant assumes the risks necessarily incident to the progress of the work in which he is engaged, it is also the rule that the master must exercise reasonable care for the servant's safety, no matter what the nature of his employment. In Martin v. Light Co., 131 Iowa 724, 106 N.W. 359, it was said: "It would be a most unreasonable rule if the act of a servant in undertaking an unusually dangerous service for the master should relieve such master from all obligations to exercise reasonable care for the servant's safety. The servant may properly be held to the risk of the extraordinary danger which is naturally incident to the extraordinary service; but he never takes the risk of the master's negligence under any circumstances, same when he knows of such negligence, or as a reasonably intelligent person ought to have known of it, and chooses to remain in the service." In other words, the master can not escape liability on the ground that the servant has assumed the risk unless it appears that the master has exercised reasonable care for the servant's safety, or that such failure on his part was or should have been known to the servant. McQueeny v. Chicago, M. & St. P. Ry. Co., 120 Iowa 522, 94 N.W. 1124; Madden v. Railroad Co., 32 Minn. 303 (20 N.W. 317).

The evidence fails to show that the place was unsafe when the plaintiff went to work that night, in the sense that the overhanging clay was so loosened that it was liable to fall at any moment. The plaintiff undoubtedly understood that, if left there, the overhanging clay might become loosened, and thus become a menace to the workmen below it; but he did not know that it was then in a dangerous condition. On the contrary, he examined its condition at the top where cracks would appear, if it was loosened from the main bank, and discovered no indication of danger. He also examined the sides and the under part thereof, and was unable to find any indications that it was otherwise than solid and firmly attached to the bank. While he had earlier in the evening shot some holes fifteen feet to one side of the chunk, the evidence tends to show that such explosions would not ordinarily affect the stability of...