Corell v. Williams & Hunting Co.

Decision Date20 January 1916
Docket NumberNo. 29079.,29079.
Citation155 N.W. 982,173 Iowa 571
PartiesCORELL v. WILLIAMS & HUNTING CO.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Linn County; W. N. Treichler, Judge.

Action to recover for personal injuries. Verdict and judgment for the plaintiff. Defendant appeals. Affirmed.

Deemer, J., dissenting.Dawley, Jordan & Dawley, of Cedar Rapids, for appellant.

Rickel & Dennis, of Cedar Rapids, for appellee.

GAYNOR, J.

This case was before this court and determined by it on the 25th day of September, 1914. The finding then was adverse to appellant. At the same term in which the opinion was filed, a petition for rehearing was submitted, and later a rehearing granted. The case is again before us for determination upon the merits of the original appeal. The opinion of the court, as originally filed, may be found in 148 N. W. 633.

The facts of the case are substantially as follows: The defendants were conducting a woodworking establishment in Cedar Rapids. Plaintiff was a woodworker. Prior to the accident he had been engaged at his trade for about 4 years, the last 13 months of which he was employed by the defendants. He was employed to do general work. This required him at times to use different machines, owned and operated by the defendants in and about their business. At the time of his injury he was working with a combined machine on which was then a ripsaw. In some of the work done with this machine guards were used, but for other kinds of work, including ripsawing, no guards were used. At the time of the accident the plaintiff was using the machine for ripsawing, and it was unguarded.

The manner in which the accident happened was, as shown by the testimony, as follows: He was ripsawing pieces of oak wood which were about 18 inches long, 8 inches wide, and 3 1/2 inches thick. His purpose was to make them of the width of 7 1/4 inches. The wood was green and inclined to bind against the saw. To lessen this and to reduce the possibility of danger, he adjusted the saw and table so that in pushing the board over the saw the groove would be cut about one-half the thickness of the board. He then turned it over, again running the board through. The second cutting finished the operation. He had cut two or three of the blocks before he was injured, all of them bothering him somewhat because of a tendency to bind. He took up the block which was being sawed at the time of the injury and pushed it over the saw. As it was binding some, he endeavored to hold it down with his left hand while pushing it with his right hand. This, he claims, was done to prevent its raising and falling back against him. While so engaged, the block was knocked from his hands, and his left hand came in contact with the saw, resulting in the injuries complained of.

There was evidence on the part of the defendants to the effect that the manager of the mill, acting for the defendants, had previously called the plaintiff's attention to a guard, and asked him if he could put it on, to which it is claimed the plaintiff replied that he could. This conversation, however, was denied by the plaintiff. The plaintiff's action is based upon a charge of negligence, and the negligence charged is, that the defendants failed to provide plaintiff with a safe place to work; that they failed to properly guard the ripsaw; did not provide proper and safe appliances for doing the work required of the plaintiff.

The answer was a general denial, and a plea of assumption of risk, based upon the allegation that the saw and appliances with which plaintiff was working at the time, were the same he had used for months, and were in the same condition, and that he knew the saw was unguarded.

There was a trial to a jury resulting in a verdict for the plaintiff, and, judgment being entered upon the verdict, defendants appeal, and assign several errors upon which they predicate a right to have a reversal.

The first relates to an assumption of risk, the charge being that the court erred, not only in the giving of instructions upon this question, but in refusing to give instructions asked by the defendants. In speaking of assumption of risk, we take it counsel do not refer to that risk which is ever present with and attendant upon the employment, when the master has done his full duty to the servant, but rather that added risk which comes from a failure of the master to discharge his duty to the servant.

A proper understanding of this controversy involves the following provisions of our statute. Section 4999a2 of the Code Supplement of 1913 provides:

“It shall be the duty of the owner, agent, superintendent or other person having charge of any manufacturing or other establishment where machinery is used, to furnish and supply or cause to be furnished and supplied therein, belt shifters or other safe mechanical contrivances for the purpose of throwing belts on and off pulleys, and, wherever possible, machinery therein shall be provided with loose pulleys; all saws, planers, cogs, gearing, belting, shafting, set screws and machinery of every description therein shall be properly guarded.”

Section 4999a3 provides:

“That in all cases where the property, works, machinery or appliances of an employer are defective or out of repair, and where it is the duty of the employer from the character of the place, work, machinery or appliances to furnish reasonably safe machinery, appliances or place to work the employé shall not be deemed to have assumed the risk, by continuing in the prosecution of the work, growing out of any defect as aforesaid, of which the employé may have had knowledge when the employer had knowledge of such defect, except when in the usual and ordinary course of his employment it is the duty of such employé to make the repairs, or remedy the defects. Nor shall the employé under such conditions be deemed to have waived the negligence, if any, unless the danger be imminent and to such extent that a reasonably prudent person would not have continued in the prosecution of the work; but this statute shall not be construed so as to include such risks as are incident to the employment.”

The first section above set out was enacted by the Twenty-Ninth General Assembly (chapter 149, section 2); the second by the Thirty-Third General Assembly (chapter 219, section 1).

[1] The first section has been construed several times by this court, and held to impose upon the master an affirmative duty to provide the protection therein required, and that a failure to do so is negligence per se. See Obenchain v. Harris, 148 Iowa, 86, 126 N. W. 960;Poli v. Numa Block Coal Co., 149 Iowa, 104, 127 N. W. 1105, 33 L. R. A. (N. S.) 646;Stephenson v. Brick & Tile Co., 151 Iowa, 371, 130 N. W. 586;Miller v. Sash & Door Co., 153 Iowa, 735, 134 N. W. 411;McCarney v. Battendorf Axle Co., 156 Iowa, 418, 136 N. W. 920. It will be noticed that section 4999a2, above set out, makes it the duty of the owner, agent, superintendent, or other person having charge of any manufacturing or any other establishment where machinery is used, to properly guard all saws used in and about the business. The Legislature imposing this duty upon the manufacturer, undoubtedly considered it necessary and proper to be done for the safety of the employé. Negligence always presupposes a duty, either legal or contractual. A duty being imposed, a failure to discharge it, resulting in injury to another, is actionable negligence.

[2] Therefore we start with the proposition that it was the duty of these defendants to properly guard the saw furnished the plaintiff for use in and about its factory. When properly guarded, the servant assumed the risk incident to its use. When not properly guarded, he did not assume the risk incident to its use, though he continued to use it in its unguarded condition, except as hereinafter stated. This is as far as we are required to consider the first section in its application to the case under consideration.

In the next subdivision of section 4999, hereinbefore set out, the Legislature recognized not only the common-law obligation of the master to furnish reasonably safe place to work and reasonably safe appliances, machinery, and tools with which to do the work, but recognized also the provisions of section 4999a2, and says that the employé shall not be deemed to have assumed the risk by continuing in the prosecution of the work, when the risk is due to defects in the machinery furnished or due to a failure of the master to perform the masterial duties imposed by the common law or the statute, even though the employé have knowledge of such dereliction when it appears that the master also had knowledge, unless it be made to appear that it was the duty of the employé, in the usual and ordinary course of employment, to make repairs or remedy the defects, and then only is he deemed to have assumed the risk or waived the master's negligence, when the danger is imminent and to such an extent that a reasonably prudent person would not have continued in the prosecution of the work.

It will be noted from these statutes that there was a purpose on the part of the Legislature to change the law as heretofore announced and followed, touching the assumption of risk due to the negligence of the master. The old rule was that where the master had failed to discharge his masterial duty, and the servant knew this, and continued to work without complaint and promise of repair, he assumed all the added risk due to the master's dereliction of duty. Under this statute he does not do so. Its provisions are that, where it is the duty of the master to do the things contemplated by the statute, or imposed upon the master by common law, the employé does not assume the risk of such dereliction of duty by continuing to work, when he and the master both have knowledge of the master's shortcomings. To this, however, exception is made when, in the usual and ordinary course of his employment it is the duty of the...

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