Calloway v. Agar Packing Co.

• Decision Date: 18 October 1905
• Citation: 129 Iowa 1,104 N.W. 721
• Parties: CALLOWAY v. AGAR PACKING CO.
• Court: Iowa Supreme Court

129 Iowa 1

104 N.W. 721

CALLOWAY

v.AGAR PACKING CO.

Supreme Court of Iowa.

Oct. 18, 1905.

Appeal from District Court, Polk County; James A. Howe, Judge.

Action at law by plaintiff, as administrator of the estate of George Calloway, deceased, to recover damages for the death of said George Calloway, caused, as alleged, by the negligence of defendant. At the close of the evidence for plaintiff there was a directed verdict for defendant, and plaintiff appeals. Reversed.Spurrier, Forbes & Mills, for appellant.

Carr, Hewitt, Parker & Wright, for appellee.

BISHOP, J.

The motion to direct a verdict was based upon substantially these grounds: (1) There was no evidence of negligence on the part of defendant. (2) The evidence made it appear that plaintiff's decedent was guilty of contributory negligence. (3) The evidence made it appear that there had been an assumption of the risk. As we think the motion should have been overruled, a brief review of the evidence as found in the record, and having application to the several propositions presented, seems necessary.

1. The defendant operates a packing house in the city of Des Moines, and the plaintiff's decedent, a boy 14 years of age, was in its employ. The negligence alleged on the part of defendant is in not providing a safe place to work. A careful reading of the evidence satisfies us that the jury would have been warranted in finding the conditions and circumstances under which the boy met his death to be as follows: The hog-killing house of defendant is so arranged that the hogs are driven up a chute or inclined way to the second story, where they enter what is designated as a “receiving pen.” From there, as needed, they are driven through a narrow chute into a catch pen, and from thence into the shackling pen. The driving is accomplished by the use of a whip furnished by defendant, and which consists of a stem or handle about 18 inches long, to which there is attached at one end a strong lash two or three feet long, while at the other end there is a thong loop designed to pass around the wrist of the user and thus avoid loss of the whip. The drivers walk along a passageway at the side of the chute, and whip the hogs into the receiving pen. On top of the fencework forming the pens, and leading up to the gate into the shackling pen, was a board, laid flatwise, upon which the drivers walked when driving the hogs from the receiving into the shackling pen. Now, passing crosswise over the chute leading from the receiving pen to the catch pen, and about four or five feet above the floor, was a revolving shaft constituting part of the machinery of the plant, and this was not boxed, nor was protection afforded against the same in any other way. Owing to the fact that the room was illy lighted, such shaft was but dimly discernible. On the morning of the accident the boy, Calloway, was taken from other work in which he had previously been engaged, and for the first time directed to assist in driving the hogs up the chute into the receiving pen, and thence into the shackling pen. Very shortly after going to work, and while standing on the footboard near the catch pen, his whiplash caught on the rapidly revolving...