Buehner v. Creamery Package Mfg. Co.

• Decision Date: 12 July 1904
• Citation: 100 N.W. 345,124 Iowa 445
• Parties: BUEHNER v. CREAMERY PACKAGE MFG. CO.
• Court: Iowa Supreme Court

124 Iowa 445

100 N.W. 345

BUEHNER

v.CREAMERY PACKAGE MFG. CO.

Supreme Court of Iowa.

July 12, 1904.

Appeal from District Court, Black Hawk County; A. S. Blair, Judge.

Plaintiff, a minor, brings action by his next friend to recover damages for personal injuries received while in the employ of the defendant. At the close of plaintiff's evidence the court, on motion, directed a verdict for defendant, and from judgment thereon the plaintiff appeals. Reversed.Ezra A. Maxwell, for appellant.

Ryan, Ryan & Ryan, for appellee.

McCLAIN, J.

Plaintiff, who was then about 15 years of age, was employed by defendant in taking away from a tongue and groover machine short boards which had been tongued and grooved by the machine, to be fitted together into heads for butter tubs, and he had been so engaged for about a month. His place of work was at the end of a table, on which the boards were delivered by the machine, being fed into it by a co-employé, one Hopkins, who stood at the other end of the machine. The rate of speed with which the boards were run through the machine was under the control of Hopkins, and at the time plaintiff was injured the machine was so geared as to run the boards through quite rapidly. It appears that when the machine was thus geared for rapid work the boards were sometimes thrown beyond the end of the table. Under the table, and less than a foot from plaintiff as he stood at his work, was a set of cogwheels, so geared as to turn inwards, and these cogwheels were at the time of the accident, to be hereafter described, uncovered and unprotected, so far as access to them under the table was concerned. The evidence tended to show that one of the boards thrown out by the machine went beyond the table, and fell to the floor; that plaintiff stooped to pick it up, and while thus in a stooping position, with his head about on a level with the table, another board was thrown beyond the table by the machine, which struck him in the head, causing him to jerk upwards and backwards, and while doing so his thumb was caught in the cogs, and so crushed that he lost a portion of the first joint. There was further evidence to show that it was not unusual for the boards to fall beyond the end of the table, and that it was plaintiff's duty in such cases to pick them up from the floor, and that plaintiff was required to work very rapidly when the machine was running at high speed, in order to take care of the boards as delivered to him by the machine. The negligence complained of was failure to guard the cogwheels so that there should be no danger that plaintiff, working at the end of the table, should come in contact with them, and failure to have the place where plaintiff was required to work so lighted that the plaintiff could readily see the cogwheels and avoid them. The grounds urged in the motion to direct a verdict were: That there was no evidence of negligence in these respects; that plaintiff had assumed the risk of the danger, whatever it might be; that the accident was due to the negligence of the co-employé, Hopkins, for which the defendant was not responsible; and that there was contributory negligence on the part of the plaintiff such as to defeat his recovery.

With reference to the failure to place a guard in front of the cogwheels under the table, so as to avoid the danger that the operator, stooping under the table to pick up a board, should come in contact with them. we think the evidence sufficiently shows that such guarding would have been practicable, and that it would have been a reasonable precaution against an accident such as was likely to occur, and did occur, in the case of this plaintiff. The defendant ought to have anticipated such a danger and provided against it. In Nadau v. White Rover Lumber Co., 76 Wis. 120, 43 N. W. 1135, 20 Am. St. Rep. 29, involving the question of liability of an employer for unguarded cogwheels, language is used which we think peculiarly pertinent here: “That this set of cogwheels was dangerous, even to the most experienced workman, can hardly admit of a doubt. But slight forgetfulness on the part of the workman while tending to his work might bring him in contact with it; an accidental slip while at work might bring his clothing and limbs in contact with it; and we have no hesitancy in holding that, when an employer places such a dangerous piece of machinery, into which his employé, by the least forgetfulness or unavoidable accident, may be thrown and seriously injured, in the immediate vicinity of the place where his employé must do his work, he fails to furnish him a reasonably safe place for doing his work, and is guilty of gross negligence, therefore, when the usefulness of the machine is not enhanced by reason of its being uncovered, and when the expense of covering would be a mere trivial sum.” It sufficientlyappears that the occasion for stooping under the table was not the result of the negligence of the plaintiff in dropping the board, but resulted from the speed and force with which the boards were delivered by the machine, and that, in the exercise of reasonable care, plaintiff could not avoid the necessity of sometimes stooping below the table to pick up boards which dropped.

With reference to the lighting of the place where plaintiff was required to work, there was some evidence that, while the original provision for lighting was probably sufficient, some of the windows had become obstructed by refuse and dirt, so that during parts of the day it was rather dark under the table. Had plaintiff continued in the employment under these conditions without complaint and promise on the part of defendant that the defects would be...