Hartshorn v. J. C. Mardis Co.
| Decision Date | 24 March 1914 |
| Citation | 146 N.W. 70,165 Iowa 454 |
| Parties | HARTSHORN v. J. C. MARDIS CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; James P. Hewitt, Judge.
Action for damages for personal injury, alleged to have resulted from the negligence of the defendant. From a verdict and judgment for plaintiff, the defendant appeals. Affirmed.Parker, Parrish & Miller and C. Woodbridge, all of Des Moines, for appellant.
John L. Gillespie, of Des Moines, for appellee.
I. On the 24th day of July, 1911, the plaintiff was in the employ of the defendant as an unskilled laborer, a mason tender, and was engaged in the performance of work upon a building then in course of erection in the city of Des Moines; the defendant being the contractor for such work. His employment had been but for a few days preceding his accident and injury.
The claims made by the plaintiff as to the manner in which he was injured, and the cause, as pleaded by him, and as substantially supported by the evidence as to circumstances of the injury, are as follows: That plaintiff was directed to wheel a wheelbarrow full of mortar from a certain platform on the roof of said building near the hoist on the north side of the building, over a certain runway, which the defendant, by its employés, had built from said hoist and platform toward the west. That, in wheeling said wheelbarrow in a westerly direction over said runway and along the north side of the building and on the roof thereof, the wheel of the wheelbarrow dropped down from one end of a plank through several inches of space onto another plank, which drop or bump caused the said wheelbarrow to become unbalanced and tip, thereby causing the plaintiff to lose his balance and to be thrown off of said runway and over the edge of the building to the ground, which fall severely and permanently injured the plaintiff. The runway was but a short distance south of the north wall, about parallel with it, and consisted of an inclined plank, two inches thick, and eight or ten inches in width, extending over an open space below, excepting ceiling joists of the third floor; the walls of the building having reached that height, but being at that place lower than the runway. With the jerk of the wheelbarrow resulting, as claimed from the wheel dropping from the end of the incline, the plaintiff was thrown toward the north and west, over the north wall of the building. The injuries resulting from the fall were serious and permanent; and counsel for appellant does not criticise the amount allowed as damages, if it shall be held that it is liable in any amount.
The particular grounds of negligence charged are that it failed to furnish to plaintiff a reasonably safe place to work; in failing to provide a reasonably safe runway from the platform and hoist towards the west, over which the plaintiff might operate the wheelbarrow; in that it caused to be built for plaintiff's use, and directed the plaintiff to use, the runway, it at the time being defective, rough, and uneven, and was so built as to cause the wheel of a wheelbarrow being run over the top of it to drop from one end of the plank down onto another plank or board. He pleads that he was free from contributory negligence.
The defendant alleges that the plaintiff, at the time, was thoroughly familiar with the condition of the runway, knew the manner in which it was built, and that he then appreciated all danger incurred in the work he was then doing, and that he assumed the risk.
The trial resulted in a verdict and judgment for the plaintiff, from which this appeal is taken.
II. The superintendent in charge of the construction was one McGorrick, and the foreman in charge of the carpenter work was a man whom some witnesses refer to as Welsh, others calling him Hodge. There being no question that the witnesses who speak of him by the different names mean the same man, so far as reference to him is necessary we shall call him Hodge.
According to the testimony of the plaintiff, his duties were only to help the masons by furnishing to them brick and mortar for their work; the means of transportation supplied to him for that purpose, and which he used, being a wheelbarrow. It is the claim of the appellee, and the evidence tends to so show, that the runway over which he passed had just been constructed, and that he had not used it before the time of his accident; that it was built by Hodge, the boss carpenter, who was acting in such matters under the direction of McGorrick, the superintendent; that the carpenter left the upper end of the plank resting upon the board or platform, with no strip or wedge-shaped piece to connect the plank by a smooth course with that upon which it rested; and that because of there being no such provision, and because of the position of the end of the board, there was a fall or drop. The evidence also tends to show that other runways which had previously been used by the appellee in his work on the building had been leveled by a cleat or strip, or in some other manner made flush with that with which they were connected. It also appears that he had at no time been charged with the duty of preparing the runways, or that he had assisted in preparing them. He also testifies that he did not see or know of the drop in this runway at the time of his injury, and that he proceeded in the manner which he had previously followed. Upon this point it is claimed by the appellant that appellee's statement that he did not see the condition cannot weigh against the admission made by him upon the trial that he could see the drop in a model, alike in size, an arrangement which was used during the trial, and to which, from various positions taken by him, his attention was directed.
McGorrick, the superintendent, testified that he was in charge of the construction of the building, and that Hodge, the carpenter foreman, did all the building, repair, and construction of the runways, under his (McGorrick's) supervision, and that he had built this one. He had seen the runway before the accident and glanced over it to see that it was handiest. He also testified that he examined the drop after the accident, and thought it was not over five-eighths of an inch. It was and is claimed on the part of the appellant that one Douglas assisted in the construction of this runway, and that he was a coemployé of the appellee, and that for any negligence, if there was such, in the manner of its construction, it would not be liable. The connection of Douglas with that particular piece of work is in some dispute, but his own testimony was that all he did was to get the plank and block for the boss carpenter. This same witness testified that he saw the plank within a short time after the accident; that there was no block at the upper end of the plank; that the boss told him the wheel bounced over there, and not to wheel another wheelbarrow over that, and it was taken up. This statement of the evidence is sufficient to determine the questions which are raised by the appeal.
III. The errors assigned are many, but are grouped and discussed by counsel under six heads. With the exception of the last ground, all are in support of the claim that the evidence was insufficient to warrant a verdict against the defendant; and these we will consider in the order of their presentation.
[1] It is first contended that the rule as to safe place is not applicable to the case, for the reason that the runway was not a place which the appellant was bound to make safe for the use of the appellee; that it was no part of the permanent structure; that it was not an appliance within the meaning of the rule requiring reasonably safe appliances to be furnished by the master; but that it was a temporary expedient or utility, which was an incident and detail of the work. The ultimate claim as to this feature of the case is that recovery for injuries resulting from a failure to maintain a safe place to work must be rested upon proof that that which is claimed to be an unsafe place is of a permanent nature. On this question there is a want of...
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