Freeby v. Town of Sibley

• Decision Date: 20 May 1918
• Docket Number: No. 31870.,31870.
• Citation: 183 Iowa 827,167 N.W. 770
• Parties: FREEBY v. TOWN OF SIBLEY ET AL.
• Court: Iowa Supreme Court

183 Iowa 827

167 N.W. 770

FREEBY

v.TOWN OF SIBLEY ET AL.

No. 31870.

Supreme Court of Iowa.

May 20, 1918.

Appeal from District Court, Osceola County; W. D. Boies, Judge.

Action at law to recover damages for the death of plaintiff's intestate. Verdict and judgment for defendants. and plaintiff appeals. Reversed and remanded.C. R. Metcalfe, of Sioux City, for appellant.

Clark & Dwinell, of Sibley, for appellees.

WEAVER, J.

The defendant town owns and operates a municipal water and gas plant of which at the time here in question the defendant Clayton was superintendent, and the deceased was an assistant or helper in the operation of said plant. On June 14, 1914, while in said employment in and about said business, the deceased came in contact with a rapidly revolving shaft upon which his clothing or person was caught in such manner that he was drawn into the moving machinery and killed. The plaintiff, as the administratrix of the deceased, brings this action joining therein as codefendants the town of Sibley and the superintendent, Clayton, alleging in her petition that deceased came to his death by reason of the negligence of said defendants and without contributory negligence on his part. It is charged that the plant and machinery were negligently constructed and maintained, thereby making the operation dangerous, that the pulleys provided for the belting employed in such operation were left unguarded, and had protruding bolt ends which were not covered, and that they were not provided with belt shifters or otherwise protected as provided by law. It is further alleged that deceased had been in said employment for only a short time and was without experience in such work as the defendants well knew, and under the order or direction of the superintendent he was placed alone in charge of the operation of the plant at night, and it was while in such service and in the line of his duty that he was drawn into the machinery and killed, and that such accident was occasioned by reason of the defective condition of the machinery and of its unguarded condition of which complaint is made.

The defendants deny the several allegations of negligence contained in the petition, and by way of affirmative defense allege that deceased had full knowledge of the dangers attending the operation of the machinery, and was expressly warned against exposing himself to contact therewith, and voluntarily assumed the risk arising from defendants' alleged negligence. They also allege that after the decease of Freeby the town entered into a settlement with plaintiff in her individual capacity, and paid her the sum of $150 in full of all her claims for damages on account of her husband's death.

On the trial there was evidence tending to sustain the plaintiff's petition as to the alleged defective and dangerous and unguarded condition of the machinery. It was shown that at the time the intestate was killed he was attending the operation of the plant alone, and no living witness undertakes to tell how the accident occurred. It appears that the principal shaft by which the machinery was operated was located some 12 feet above the floor, and carried several pulleys for belting. The means provided for getting up to the shaft to adjust the belting or to perform any other duty connected with the care of the machinery at that point was a ladder with curved ends or hangers at the top. When used for this purpose the ladder was kept in position by hanging the hooks at the top over the shaft; the bottom of the ladder resting on the floor. When discovered, Freeby's dead body lay on the floor under the shaft near the foot of the ladder which was hooked over the shaft in the usual way. His right arm was torn off, left arm broken, and skull crushed, and the severed hand was found wedged into one of the pulleys at the shaft, but the exact manner of it is not clearly shown.

As it is not questioned that the case made was one for the jury, we shall not extend this opinion for any review of the testimony, but give attention to one or two propositions which appear decisive of the appeal.

I. In its charge to the jury the trial court nowhere instructed that to entitle plaintiff to recover it was not necessary to find both defendants negligent as charged, or that, if the evidence was found to justify it, the jury could find in her favor against either defendant alone. On the contrary, wherever the charge stated the issues or referred to the contending parties, and the rules governing their respective rights in the case, the defendants were in each instance spoken of jointly or in the plural form, and nowhere is there any intimation of their several or individual liability. At the close of the arguments, and after the court's charge had been prepared, but before it had been given to the jury, plaintiff's counsel asked the court to submit with its charge a form of verdict to be used in case the jury should find against one defendant alone, and to inform the jury that such a verdict was allowable. The court refused the request, and submitted to the jury but two forms of verdict, as follows:

Verdict No. 1.

We, the jury, find for the plaintiff, Mrs. Eva Freeby, as administratrix of the estate of William E. Freeby, deceased, and assess the amount of her recovery against the defendants, at $_____.

________, Foreman.

Verdict No. 2.

We, the jury, find for the defendants.

[Signed] ________, Foreman.

The only reason assigned by the court at the time for its refusal of the request was that it was made after the arguments had been concluded and the instructions prepared, and not before argument as provided by statute. Error is assigned by appellant upon this ruling.

[1][2] The statute as it existed at the time of the trial below (Code Supp. § 3705a) provided that all requests for instructions should be presented to the judge before argument to the jury and before the reading of the charge to the jury. It also provides that the judge, before reading his charge to the jury, shall present it to counsel on either side and give reasonable time for its examination, and, this being done, all objections thereto must be made and exceptions thereto taken before the charge is read to the jury. It is not provided that the court shall have its charge prepared and completed before counsel's argument to the jury is begun, nor is it required that counsel shall assume to offer objection or take exception to the charge until it is completed by the court, and this may be, and in ordinary practice is, not complete much before the arguments for counsel are closed. It seems quite clear, therefore, that objections and exceptions to the charge are in time if taken before the reading of the charge to the jury. Nor can we think that the requirement that requests for instructions be made before argument begins contemplates that counsel must in this way anticipate any omission by the court to give those instructions which it is its duty to give without request. Overhouser v. Cereal Co., 128 Iowa, 580, 105 N. W. 113;Brick v. Bosworth, 162 Mass. 334, 39 N. E. 36;Ela v. Cockshott, 119 Mass. 416;People v. Demasters, 105 Cal. 669, 39 Pac. 35;Crippen v. Hope, 38 Mich. 344;Carey v. Railroad Co., 61 Wis. 71, 20 N. W. 648. If, then, when the charge is prepared, counsel discover therein an omission or failure to charge upon a matter which is fundamental in the case or necessary to a proper statement or explanation of the issues to the jury, we see no reason why counsel may not then, before the charge is submitted to the jury, call attention to such matter and take exception thereto, or ask that the rule be properly given. In our judgment, a jury of ordinary laymen reading the charge as given by the court in this case could hardly avoid the conclusion therefrom that plaintiff must recover against both defendants or against neither. Indeed, such appears to have been the theory of the defense on the trial below, and such is the logical effect of the argument which it presents here. For example, counsel say:

“Then, if it is true that Clayton was the superintendent or the person in charge, and that the same duty and liability rests upon the owner and superintendent alike, then, if one defendant in this case is liable, the other must be also. We do not mean to contend that plaintiff was bound to bring her action against both defendants, but, having brought it against both, alleging their joint liability throughout her pleading, and introducing all testimony and arguing the case to the jury under that theory, the court was justified in instructing the jury as it did.”

[3][4][5][6][7][8] That this is a radically wrong theory of the law is hardly open to question. Nothing is better settled than that any number of parties may be joined as defendants, all charged with negligence or other tort producing a certain alleged injury to the damage of plaintiff, and recovery may be had against any one of them, and...