Brusseau v. Lower Brick Co.

• Decision Date: 07 February 1907
• Citation: 110 N.W. 577,133 Iowa 245
• Parties: CHARLES V. BRUSSEAU v. THE LOWER BRICK COMPANY, a Corporation; GEORGE FAIRCHILD, EGBERT FAIRCHILD and HENRY R. LITTLE and LOWER BRICK COMPANY, Co-Partnership, Appellants
• Court: Iowa Supreme Court

110 N.W. 577

133 Iowa 245

CHARLES V. BRUSSEAU v. THE LOWER BRICK COMPANY, a Corporation; GEORGE FAIRCHILD, EGBERT FAIRCHILD and HENRY R. LITTLE and LOWER BRICK COMPANY, Co-Partnership, Appellants

Supreme Court of Iowa, Des Moines

February 7, 1907

Appeal from Woodbury District Court.-- HON. WILLIAM HUTCHINSON Judge.

ACTION for damages caused by the breaking of an elevator cable. Judgment was entered for plaintiff. The defendant appeals.-- Affirmed.

Affirmed.

M. L Sears, for appellants.

F. E Gill, for appellee.

OPINION

LADD, J.

The plaintiff was an employe of the defendant, and at the instance of its foreman was engaged in removing building blocks from the upper floors of its building. He had placed about one hundred and twenty of these blocks on a car and run it on the freight elevator. As this was descending, the cable broke, precipitating him, with the load, to the bottom, and seriously injuring him. Several errors are complained of as having occurred in the trial.

I. The jurors were examined on voir dire with respect to their connection with any employer's casualty insurance company. A like examination was approved in Foley v. Cudahy Packing Company, 119 Iowa 246, 93 N.W. 284, and since then has been upheld by the Supreme Court of Wisconsin. Howard v. Beldenville Lumber Company (Wis.) 129 Wis. 98, 108 N.W. 48. See also, Antletz v. Smith, 97 Minn. 217 (106 N.W. 517). The inquiry was rightly permitted.

II. The manager of defendant testified that the State commissioner of labor inspected its works about two weeks before the accident. Notice from him that three screws on shafting were not guarded was produced, and, after the witness had said he had had no conversation with the commissioner concerning the elevator, he was asked whether that officer had made any reference to the elevator, whether he had recommended any changes or repairs other than as indicated in the notice, and also whether anything was said concerning the elevator. The manifest object of each of these inquiries was a negative answer upon which to build an argument that defendant was not put upon inquiry as to the condition of the cable. But it was not shown that the commissioner had examined the cable, and, if he had not, the defendant would have no right to rely upon anything he might say. Moreover, the witness had previously stated that he had said nothing on the subject, and there was no occasion for repetition.

The foreman of defendant was asked whether the commissioner had made any report to him about the plant. As this question merely called for the fact as to whether a report had been made, it was not vulnerable to the objection of not calling for the best evidence. The relevancy of such report was not made to appear, however, and the ruling excluding an answer was rightly sustained on this ground.

III. Most of the exceptions to the instructions given are disposed of by adverting to the well-established rule that the charge to the jury must be considered in its entirety. When so considered, the suggestion that paragraph No. 4 1/2 withdrew all defenses save that of settlement, and No. 5 all except that of defendant's negligence, and that No. 7 assumed that the cable was defective, prove to be unfounded.

Instruction No. 12 is criticized for directing the jury to deduct the $ 290.40 alleged to have been paid in settlement from the amount of damages to which plaintiff was found to be entitled, on the ground that no counterclaim was pleaded. Manifestly this was not prejudicial to defendant. If, however, counsel think otherwise, the error may be corrected by adding to the judgment the credit said improperly to have been allowed. No error was involved refusing the instructions requested; for, in so far as correct, these were included in those given.

Whether there was any misconduct on the part of counsel in addressing the jury was an issue peculiarly within the discretion of the trial judge, and we are not disposed to interfere with his conclusion.

IV. But two questions requiring attention remain, and these are whether the issues of assumption of risk by plaintiff and negligence of defendant were properly submitted to the jury. The answer set up that plaintiff had assumed the risk of the cable being defective, and the court submitted that issue to the jury in the ninth instruction. But in instruction No. 4 1/2 the jury were told that, if the defendant was negligent and the inquiry resulted therefrom without fault on plaintiff's part, he was entitled to recover, unless they found that there had been a settlement. Manifestly these instructions were contradictory in saying that recovery might be had regardless of any assumption of risk, and that if plaintiff had assumed the risk he could not recover. Quinn v. Railway, 107 Iowa 710; Meyer v. Boepple Button Co., 112 Iowa 51, 83 N.W. 809; Christy v City Ry. Company, 126 Iowa 428. An instruction similar to No. 4 1/2 was held to have been without prejudice in Stomne v. Hanford Produce Company, 108 Iowa 137, 78 N.W. 841, owing to the manner of submitting all the issues later on in the instructions, and in Wilder v. Great Western Cereal Co., 130 Iowa 263, 104 N.W. 434, prejudice was obviated by the fact that the issues were such that a finding of the company's negligence necessarily negatived any assumption of risk by the party injured. The instructions in the case at bar are necessarily conflicting, and therefore erroneous, but were not prejudicial, for the reason...