Geesen v. Saguin
| Decision Date | 21 October 1901 |
| Citation | 87 N.W. 745,115 Iowa 7 |
| Parties | HENRY GEESEN v. JAMES SAGUIN, Appellant |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.--HON. N.W. MACY, Judge.
ACTION to recover damages for personal injuries received by plaintiff while in the employ of defendant, alleged to have been due to the negligence of defendant, consisting in the failure to notify plaintiff of danger whereby plaintiff received the injuries complained of, without negligence on his part. Judgment on verdict for plaintiff, from which defendant appeals.
Reversed.
I. R Andrews and Flickinger Bros. for appellant.
Jacob Sims for appellee.
The following brief statement of the facts will serve as a sufficient basis for the discussion of the questions of law involved in the appeal. Defendant, as contractor, had in charge the removal of certain piling in Fourteenth street, Omaha, supporting a bridge on which the Union Pacific Railroad crossed the street, and which was being replaced with an iron structure. The piles which were being removed at the time of the accident were on the east side of the street, and the method pursued was to saw them nearly through just above the ground and pull them over westward by means of a guy rope attached to the top and held by men who were placed about 30 feet west of the base of the piles. At the time of the accident plaintiff and another employe of defendant had been sawing off one of the piles, and two men holding the guy rope pulled the pile over, causing it to fall across the end of a beam which lay diagonally northeast and southwest in the street upon a pile of earth in such way that the falling pile, striking the southwest end of the beam, caused the other end to fly up and hit plaintiff, who was from four to six feet northeast of the base of the falling pile, and inflict upon him serious physical injuries. Counsel on either side discuss very ably and with the citation of many authorities the question whether, if there is a custom to give warning of danger in such case, which custom is known to defendant, or a duty growing out of the nature of the work to give such warning in order to render the place where the employe is working a safe place for him to work, and the employer charges an employe with the duty of giving such warning, the negligence of the employe charged with such duty will be considered the negligence of the principal, rendering him liable for resulting injury to another employe, or whether the negligence of the employe charged with this duty will be considered the negligence of a co-employe of the one injured for which the employer will not be liable. We find it unnecessary to decide this interesting question, for we believe it not to be involved in the determination of this appeal. Out of four grounds of alleged negligence on which plaintiff relied the court instructed the jury that they should consider but one, to wit, "the failure to give plaintiff warning of the pulling down of the pile in question by the employes holding the forward guy rope." There was no evidence of any custom by which warning should be given by the men holding the guy rope, nor did the nature of the case make it the duty of the employer to see to it that warning should be given by them. They could not be in a situation to know when was the proper time for pulling over the pile. That must depend on the progress of the sawing at the base of the pile. So far as there was any evidence on the subject, it tended to show a custom which would be in accordance with reason under the circumstances, that the men sawing at the base of the pile should give notice directly to the men...
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