Chown v. Lennox Furnace Co.
| Decision Date | 12 May 1914 |
| Docket Number | 29,508 |
| Citation | 147 N.W. 144,166 Iowa 1 |
| Parties | JOHN H. CHOWN, Appellee, v. LENNOX FURNACE COMPANY, Appellants |
| Court | Iowa Supreme Court |
Appeal from Marshall District Court.--HON. CLARENCE NICHOLS, Judge.
ACTION for damages based on negligence. From a verdict and judgment for plaintiff, the defendant appeals.
Affirmed.
Carney & Carney, and Clark, Byers & Hutchinson, for appellant.
Bradford & Johnson, for appellee.
OPINION
I.
The plaintiff in July, 1910, was in the employ of the defendant as an unskilled laborer. He sought employment as teamster from Mr. Chamberlain, the foreman, but, there being no opening in that work, he was put at other jobs. The business of the defendant was the manufacture of furnaces, and as a part of the work it was necessary to trim or finish the castings which were used by breaking off lugs which remained and grinding the casting on an emery wheel. Plaintiff was put at this work, but at times was assigned to other duties of common labor. He had had no experience in the particular work of trimming the castings, but was directed by the foreman as to the manner in which it should be done. Upon the castings as they came from the mold were projections called gates, which needed to be removed to finish the piece. On the day of his injury the plaintiff, as he testified, was cutting off these gates or projections, having been directed by the foreman to so do, placing the grate on the floor, and using a hammer and cold chisel. The foreman noticed the manner in which he was doing the work, and said, "That takes too much time; I will show you a better way to do it." According to the testimony of the plaintiff, the foreman then took the casting, laid it on a bar of the frame which held the emery wheel, which was at the time revolving struck the lug or gate with the hammer, and broke it off. He then directed the plaintiff to wheel some coal to another part of the factory, having done which he returned to his former work. He testified that he picked up a grate, ground off some small pieces, and, there being a lug or projection on it, he broke it off in the manner in which he was instructed to do by the foreman. He testified that he saw the piece fly in the air the second time he struck it, and it flew into the wheel, and hit it and fell in by the side of it. Immediately there was an explosion or break of the wheel, its parts flying in different directions, one of them striking plaintiff's hand, and so injuring it that amputation was necessary.
The foreman in his testimony stated that in directing the plaintiff as to the manner in which to break off the lugs or gates he placed the casting on the floor, and did the work there, and did not direct the plaintiff to use the frame or bar as a place upon which to do such work. Plaintiff's employment extended only over a week, and he testified that during that period he did not work more than ten or fifteen hours on the emery wheel. The evidence tends to show that at the time of the accident the wheel was revolving rapidly, at about 2,000 revolutions per minute, and that the factory test of the wheel had resulted in the recommendation that it be run at 950 revolutions per minute. There also was evidence to the effect that the wheel was, as some witnesses term it, "wobbly" on its shaft, but as to this, and also as to the speed at which it was then going, there is dispute.
A witness, Borchardt, testified that he was at the time in the employ of the defendant, and in his employment had occasion to see and use the emery wheel in the factory. About a week before the accident he says he noticed this wheel, and that it appeared to be seamed with three small cracks, which he describes as being about three inches from the hole that the mandrel ran through, running towards the edge of the wheel, and that they were two or three inches long. He testified that he told the foreman of its condition, but that the latter said they would have to use it as it was all they had, and they must keep it going as they were behind with the work. The foreman testified that his attention had never been called to any cracks. Other witnesses testified that they had used the wheel, but had not noticed any cracks in it. There also was evidence tending to show that the hammer used by plaintiff had marks upon it, from which it is claimed that he struck the wheel with it.
Plaintiff's action was based upon negligence charged as follows: In providing for his use an emery wheel with the bar or rest of the frame so far from the wheel as to permit castings or other articles to be drawn between the wheel and the bar, thereby rendering the machine unsafe for use; in furnishing for use an emery wheel known to be unsafe for use at more than 1,200 revolutions per minute, and operating it at about 2,200 revolutions per minute, thereby rendering it unsafe for plaintiff's use; in failing to guard the wheel with a shield or cover of sufficient strength to arrest the flying fragments of the wheel should it burst; in providing for plaintiff's use an emery wheel in which there were flaws, thereby rendering it unsafe. In submitting the case to the jury the trial court withdrew all charges of negligence excepting the one last given, which was in providing for plaintiff's use a defective emery wheel. Upon submission to the jury a verdict was returned for the plaintiff, and from the judgment entered this appeal is taken.
II. The assignments of error relate to the sufficiency of the evidence to support the verdict, in that it was not shown that the cracks in the emery wheel were the proximate cause of the injury, or that it was negligent to run the wheel with surface cracks in it, and also raise the questions of assumption of risk, negligence of a fellow servant, and contributory negligence, all of which arose under the pleadings. These questions were raised in a motion to direct a verdict, by instructions which were requested by the defendant, and also arise under the instructions given by and the rulings of the trial court.
III. Upon plaintiff's theory of the case the facts were in dispute; and, unless the objection to their legal sufficiency is good, taking them in their strongest bearing in support of his claim, they were such as to require the submission of the case to the jury. Assuming that, in using the bar or frame near the emery wheel as the place where to break off the lugs, the plaintiff followed the directions of the foreman there is then presented the question whether the defective condition of the wheel was the proximate cause of the injury. Such a cause is that which directly produced, or concurred directly in producing, the result. This court in Liming v. Ill. Central Ry., 81 Iowa 246, 47 N.W. 66, has recognized the governing rule in determining the question to be, ...
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