Corell v. Williams

• Decision Date: 25 September 1914
• Docket Number: No. 29079.,29079.
• Parties: CORELL v. WILLIAMS & HUNTING.
• Court: Iowa Supreme Court

148 N.W. 633

CORELL

v.WILLIAMS & HUNTING.

No. 29079.

Supreme Court of Iowa.

Sept. 25, 1914.

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

Action to recover damages based upon negligence of an employer in furnishing for use an unguarded ripsaw. Verdict and judgment for plaintiff. Defendants appeal. Affirmed.Dawley & Wheeler and W. E. Steele, all of Cedar Rapids, for appellants.

Rickel & Dennis, of Cedar Rapids, for appellee.

WITHROW, J.

I. The plaintiff was a woodworker, having been at the time of his accident engaged at his trade for about four years, the last thirteen months in the employ of Williams & Hunting, the appellants, who conducted a woodworking establishment in Cedar Rapids. He was employed to do general work in the establishment, which required him at times to use different machines. At the time of his injury he was working with what he terms a combined machine, on which was then a ripsaw. The table of the machine could be raised and lowered, permitting the use of saws of different sizes. In some of the work done with this machine guards were used, but for other kinds of work, including ripsawing, no guard was used. At the time of his accident the plaintiff was using the machine for ripsawing, and it was unguarded. The manner in which his accident happened was, as shown by the testimony, as follows: He was ripping pieces of white oak, which were about 18 inches long, 8 inches wide and 1 3/4 inches thick, his purpose being to make them of a width of 7 1/4 inches. The wood with which he was working was green, and in cutting its full thickness was inclined to bind against the saw. To lessen this condition, and to reduce the possibility of danger to himself, he adjusted the saw and table so that in pushing the board over the saw to rip it a groove would be cut about one-half the thickness of the board, it being then turned over, again run through, and the second cutting finishing the operation. He had cut two or three of the blocks before he was injured, all of them, he says, bothering him some because of a tendency to bind. He took up the block which was being sawed at the time of his injury and pushed it over the saw. It also was binding some, and to prevent it raising and flying back against him he endeavored to hold it down with his left hand while pushing it with his right hand. In this position the block pushed the saw and was knocked from his hands, and his left hand came in contact with the saw, resulting in severe injury. There was evidence on the part of the defense to the effect that the manager of the mill, one Runkle, had previously called the attention of plaintiff 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 was denied by the plaintiff.

Plaintiff's action is based upon the charge of negligence of the defendant in not providing plaintiff with a safe place to work; in not properly guarding the ripsaw, all in violation of law; in not providing proper and safe appliances for doing the work he was set to do. The answer was a general denial, and a plea of assumption of risk, based upon the allegations that the saw and appliances with which the plaintiff was working at the time were the same he had used for months, that they were in the same condition, and that he knew the saw was unguarded. The trial to a jury resulted in a verdict and judgment for the plaintiff, from which this appeal is brought.

II. The appellant presents five assignments of error, which are discussed under three principal heads. The first, relating to the assumption of risk, arises out of the refusal to give requested instructions, and in giving instructions upon that question. Instruction No. 7, given by the trial court in stating the rule as to the assumption of risk was a substantial reproduction of chapter 219, Acts 33d Gen. Assem., and was as follows:

“You are instructed that the burden of showing that the plaintiff assumed the risk of working with machinery without a guard is upon the defendant and must be shown by a preponderance of the evidence; and you are further instructed that the plaintiff shall not be deemed to have assumed the risk of his employment by continuing in the prosecution of the work, because of the failure to guard said machinery on the part of the defendant, of which the employé may have had knowledge and 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 such repairs or remedy such defects; nor shall the employé under such circumstances be deemed to have waived the negligence, if any, on the part of the defendant, so as to assume the risk, unless the danger to which he was exposed was so imminent and to such an extent that a reasonable and prudent person would not have continued in the prosecution of the work; but this shall not be considered by you, so as to include such risks as are incident to the employment. Such risks are those that naturally arise out of the plaintiff's employment, when conducted with reasonable care and without negligence on the part of the employer.”

The evidence was without dispute that the saw was unguarded, and there was much testimony to the effect that it was practical to guard it for the use to which it was at the time being put. There also was evidence under which the question of assumption of risk of imminent danger was in the case. Instruction No. 5, as given, in substance told the jury that, unless it was shown by the evidence that by reason of the purposes for which the machine was being used it was not practical to use a guard, then the defendant would be negligent in not using a guard on the machine; but if it was shown that a guard could not be used, or it was not practical, then the omission to guard it would not be negligent. Following which in instruction No. 6 was given the rule that if there was a failure to properly guard the machine, resulting in injury to plaintiff, without contributory negligence on his part, he would be entitled to recover, unless it was found “under the instruction hereinafter given you” that he assumed the risk. Following this was instruction No. 7, which was, as we have stated, substantially in the language of the factory act statute above noted. There was submitted to the jury the question of fact as to whether under the evidence it was practical to guard the machine in the use to which it was being put, placing the burden of so showing upon the defendant, and including the provision that the rule did not apply if in the usual and ordinary course of his employment it was the duty of the employé to make the repairs or remedy the defects. Instruction No. 8 was to the effect that the burden of proof was upon the defendants to show plaintiff's knowledge of the danger, and that he appreciated it, having application to the rule of the statute announced in the previous instruction that under the conditions stated the employé would not be deemed to have assumed the risk “unless the danger to which he was exposed was so imminent and to such an extent that a reasonable and prudent person would not have continued in the prosecution of the work.” Instruction No. 10, asked by the defendant, was as follows:

“If the danger in using the ripsaw without a guard was so imminent that a reasonably prudent person would not have continued in the work, then the plaintiff by continuing in the work waived the alleged negligence of defendant and assumed the risk, and would not be entitled to recover.”

[1] It is urged that because of the exception in the statute above quoted, and that as a risk is not assumed unless the danger is such that a reasonably prudent man would decline to face it, it was the right of the appellants on request to have the proposition stated in form as presented by their instruction No. 10. Summed up, the claim of appellants is that the jury should have been told “that their verdict must be for the defendant, should they find that the danger was to such an extent imminent that a reasonably prudent person would not have continued in the work.” Passing for the moment the question as to whether the law given by the court was correct, so far as it treated of the subjects and liabilities then being presented, we consider the question raised as to the correctness of the offered instruction.

On the part of the appellee it is claimed that it is vitally defective, in that it does not include as a necessary element the question of his duty as a part of his employment to repair or make safe the machinery he was using. The appellant urges that if the danger was imminent, and to such an extent that a reasonably prudent man would not have encountered it, then the question of his duty to remedy the defects does not arise. The statute under which the rights of the parties must be determined was given as instruction No. 7 by the trial...