Fitter v. Iowa Telephone Co.

• Decision Date: 14 May 1909
• Citation: 121 N.W. 48,143 Iowa 689
• Parties: CHARLES FITTER, Appellant, v. IOWA TELEPHONE COMPANY, Appellee
• Court: Iowa Supreme Court

121 N.W. 48

143 Iowa 689

CHARLES FITTER, Appellant, v. IOWA TELEPHONE COMPANY, Appellee

Supreme Court of Iowa, Des Moines

May 14, 1909

REHEARING DENIED TUESDAY, SEPTEMBER 28, 1909.

Appeal from Des Moines District Court.--HON. J. D. SMYTHE, Judge.

ACTION at law to recover damages for personal injury. Judgment for defendant upon a directed verdict, and plaintiff appeals. Reversed.

Reversed.

A. M Antrobus and F. E. Thompson, for appellant.

Power & Power, for appellee.

WEAVER J. EVANS, C. J. (dissenting).

OPINION

WEAVER, J.

In November, 1902, the defendant was engaged in the construction of a telephone line in the city of Burlington. Among its employees was a gang of men engaged in digging holes along the route, under the direction of a foreman named Shane, and another gang, in charge of a foreman named Ritter, were hauling and distributing the poles. On November 13, 1902, plaintiff, being then in his twentieth year, was employed by the defendant to assist in the work of digging holes. While in this service, on the third or fourth day of his employment, he was called by his foreman to assist in unloading certain poles which had been hauled to that vicinity by wagon. The load consisted of two poles measuring from sixty to sixty-five feet in length, and weighing each about a ton. While some of the witnesses say that there were eight or nine men gathered to do the unloading, there was evidence from which the jury could find that the number did not exceed five or six. The heavier ends of the poles rested upon the wagon bolster in front, and the wheels were coupled at such distance apart that the smaller ends of the poles extended considerably beyond the rear axle. The poles were to be deposited upon the south side of the wagon, and for some reason the attempt was made to unload the north one first. To accomplish this some of the men, including plaintiff, who had no experience in such labor, were placed at the smaller end of the pole, and by bearing down thereon while others lifted at the front the heavier end was swung to the south across the other pole and over the wagon wheel to the pavement. To lower the other end the men acting under the direction of the foreman laid hold of it, and attempted to push or slide it along the other pole on which it rested. The surface of the lower pole was wet and slippery, and as the upper one obtained headway, the men found themselves unable to withstand its weight or momentum, and it fell quickly to the pavement, the plaintiff being caught in the fall and severely injured without fault, as he claims, on his part. When plaintiff and others took hold of the pole to assist in lowering it, the foreman cautioned them to let it down easy, and at or about the time it began to slide along the lower pole he called out to them not to let it fall because it would break.

The petition charges the defendant with negligence in failing to supply a sufficient number of men to safely unload the poles, and says that plaintiff, having no experience in such work, did not know or appreciate the danger to which he was thereby exposed. Defendant is also charged with negligence in ordering the plaintiff to leave the work which he was employed to perform, and putting him into a more dangerous service without instructing and warning him with respect thereto. The defendant admits plaintiff was injured while in its service, but denies that the accident was caused by any negligence on its part. At the close of the testimony defendant moved for a directed verdict in its favor on the ground that plaintiff had not only failed to prove any negligence on the part of the defendant, but had also failed to show absence of contributory fault on his own part. The motion was sustained and from the judgment entered upon the verdict so returned the plaintiff appeals.

The foregoing statement is sufficiently full and specific to obviate the necessity of an extended discussion of the facts. In our judgment the evidence of defendant's alleged negligence and of plaintiff's freedom from contributory negligence was sufficient to take the issue to a jury. That it was the duty of the defendant to furnish a reasonably adequate number of men to handle and unload the poles with safety can hardly be denied. Woods, Master and Servant (2d Ed.) 394; Johnson v. Water Co., 71 Wis. 553 (37 N.W. 823, 5 Am. St. Rep. 243); Supple v. Agnew, 191 Ill. 439 (61 N.E. 392); 1 Labatt's Master and Servant, section 204. Whether that duty has been performed in a given case is primarily a question of fact for the jury. 1 Labatt's Master and Servant, section 205.

To sustain a charge of negligence in this respect does not necessarily require the examination of experts. If the conceded or proved facts as to the magnitude of the work to be done, and the number of men actually furnished by the master for its performance, be such that fair minded jurors may reasonably believe that due care was not exercised to furnish sufficient help to do the work with safety to those engaged therein, a finding that such employer was negligent will not be disturbed by the court. We have here a case where a large and unwieldy stick of timber weighing two thousand pounds, and resting upon wagon trucks, was to be lifted over another stick of similar proportions and over the wheels of the wagon, and lowered thence with care to the ground to avoid breaking. The number of men furnished to do this work is not shown with certainty, but, as we have already said, there was evidence from which the jury could find it did not exceed five or six. Is the sufficiency of this force so apparent that the court may say, as a matter of law, the defendant did its full duty in the premises? We think not. That the defendant itself regarded this question of fact an open one is manifest from the record, which shows that its defense on the trial was directed almost entirely to prove by expert witnesses that such work could be performed in safety by from four to six men. It is not necessary that plaintiff should have countered this showing with the testimony of other experts in order to make the question one for the jury. The effect and value of such testimony rests entirely with the jury, and this is particularly true where, as in this case, the subject is one of which the jurors may be presumed able to exercise some degree of intelligent, independent judgment. 2 Elliott on Evidence, sections 1046, 1047; 11 Cyc. 131; Baxter v. R. R. Co., 104 Wis. 307 (80 N.W. 644). In the cited case the court says: "Opinion evidence alone is not conclusive in any case. The jury must pass upon the probabilities." This rule is quite applicable to the case before us. There is nothing in the record to class it as an exception to the rule that reasonable care is an inference of fact to be drawn from all the relevant evidence adduced, and therefore not a question for the court. It follows from this conclusion that the trial court erred in directing a verdict, unless we may further say as a matter of law that the alleged negligence of the defendant was not the proximate cause of plaintiff's injury, or that plaintiff has failed to show his freedom from fault contributing to...