Flick v. Globe Manufacturing Co.
| Decision Date | 24 November 1915 |
| Docket Number | 30114 |
| Parties | J. M. FLICK, Appellee, v. GLOBE MANUFACTURING COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Dallas District Court.--HON. W. H. FAHEY, Judge.
ACTION at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.-- Affirmed.
Affirmed.
Giddings & Blake and Cummins, Hume & Bradshaw, for appellant.
H. S Dugan and White & Clarke, for appellee.
The defendant operates a factory for the manufacture of washing machines at Perry, Iowa, and on May 24, 1913, and for some time prior thereto, the plaintiff was an employee in the factory. On the day named, as he alleges, he was directed by his superintendent to drive a chuck out of a drill press and place therein a boring bar. Being urged by the superintendent to hurry and make the change quickly, and assuming that the tools furnished him for that purpose were safe, he picked up a punch which was provided at that place and placed the same in position to drive the chuck from the spindle. In that position, he struck the punch with a hammer, with the result that a scale or piece of the punch was broken off and struck him in the eye, causing him a serious injury. He further alleges the fact to be that the punch was not of a suitable kind, character, material or temper for such use, and that of this fact the defendant had notice and knowledge. He specifies the alleged negligence of the defendant as follows:
"That defendant itself manufactured the punch from an old file which was brittle and so tempered that when struck with a hammer it was likely to give off small particles of steel, and it was, therefore, unfit for the use for which it was furnished; that due care was not used by defendant in allowing the punch to be used in its factory; and that defendant negligently failed to furnish the plaintiff with fit and proper tools and appliances with which to perform the work required of him, and that he suffered injury as alleged without fault on his part."
Answering this claim, the defendant admits that plaintiff was employed in its shops at the time in question, and alleges that he was employed as a machinist and repair man, in which capacity it was his duty to select, make, provide and repair all small tools, including such implements as the punch of which he complains. It further admits that plaintiff, in the course of such service, undertook to remove a drill from an iron driving shaft by driving or forcing such drill from its position with a punch and hammer, and that, in so doing, a portion of the punch was chipped off, flying into plaintiff's eye, causing him pain and suffering, and that the sight of that eye has since been partially or wholly lost; but denies all charges of negligence on its part. In a second count of the answer, defendant alleges that plaintiff entered the employment knowing its dangers," and assumed all risks and dangers incident thereto". In a third count, it is alleged that defendant provided and furnished, for plaintiff's use, a punch made of soft steel, which was entirely safe for use in such work; that it was plaintiff's duty to make use of such tool instead of the one which he did use; and that, if injured, as alleged by him, or if his injury was the result of any negligence on the part of defendant, plaintiff contributed thereto by his own negligence and is not entitled to recover damages.
The admissions made in the answer preclude the necessity of discussion upon the fact that plaintiff was injured while in the performance of his duty to his employer, and leave for our consideration the questions of negligence and contributory negligence and such exceptions as have been preserved and argued upon rulings of the court below in the course of the trial.
I. Is there evidence in the record upon which the jury could properly charge the defendant with negligence?
Giving the evidence its most favorable construction in support of the verdict, it tends to show that, while plaintiff was engaged for service as a tool-maker and repair man, his actual service was, to a large extent, in the general work of the factory, more particularly in metal work, and that this was done because of the press of work other than tool making and repairing. When he did make tools, it was at the direction of the superintendent or foreman in charge, and not upon his own motion. On the day of plaintiff's injuries, he was engaged in making washing machine parts until he was called to work at the drill press. The punch or drift in question had been made in the shop from a file, prior to plaintiff's employment therein. Several months before his injury, he had discovered the tool and saw that it was made from a file, and, believing it to be dangerous, had called the attention of the foreman and superintendent to it, and to get it out of the way, he threw it into a box of old scrap. Sometime thereafter, having occasion to use a drift, he found the same tool lying on the bench and again threw it away among the old scrap and made another of proper material, which he left on or near the drill. He called the attention of his superior to the unfitness of the tool and thereafter saw nothing more of it, until he discovered that it was the one from which he had received the injury of which he now complains. That the drift was a proper one for such use, or made from suitable material, is not asserted by any witness except perhaps one. The duty of the employer to use reasonable care to supply his workmen with reasonably safe and suitable tools and appliances is, of course, elementary in the law of master and servant. It follows, we think, without further discussion at this point, that, under the case as made by the plaintiff, the jury could properly find that the punch or drift was not a reasonably safe tool for the use for which it was supplied, and that the defendant had notice or knowledge thereof in reasonable time to have withdrawn it from use or to furnish another of suitable kind and character for the work of the factory.
II. The second, and perhaps closer, question is upon the issue of contributory negligence. Plaintiff admits that he knew of the defective character of the drift, and if, in using it on the occasion of his injury, he knew or recognized the drift as the one which he had condemned and thrown away, or if, in the exercise of reasonable care, he ought to have recognized it then he was negligent, and, under the law, is not entitled to recover. But we are quite satisfied that this question cannot be disposed of peremptorily as a matter of law. Again taking the testimony in his behalf, it tends to show that the last time plaintiff saw the drift before the occasion of his injury was 2 or 3 months prior thereto, when he threw it away the second time, and we cannot say that he was in duty bound to anticipate that it was likely to reappear in use and be careful every time he had occasion to use a drift to scrutinize it and see if it was not the one which had been discarded. He had no occasion to use the drill press or drift for a...
To continue reading
Request your trial