Jacobson v. United States Gypsum Co.

• Decision Date: 08 March 1911
• Citation: 130 N.W. 122,150 Iowa 330
• Parties: OLE JACOBSON, Appellee, v. UNITED STATES GYPSUM CO., Appellant
• Court: Iowa Supreme Court

130 N.W. 122

150 Iowa 330

OLE JACOBSON, Appellee, v. UNITED STATES GYPSUM CO., Appellant

Supreme Court of Iowa, Des Moines

March 8, 1911

Appeal from Webster District Court.--HON. C. G. LEE, Judge.

ACTION at law to recover damages for personal injuries received by plaintiff while in defendant's employ as a servant or employee. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.--Modified and affirmed.

Affirmed.

B. J Price and Clark & Hutchinson, for appellant.

W. T Chantland and Kelleher & O'Connor, for appellee.

OPINION

DEEMER, J.

This is the second time the case has been before us. The opinion on the first appeal will be found in 144 Iowa 1. That opinion whether right or wrong, made the law of the case, and it should be adhered to on this appeal.

Most of the questions presented on this appeal were considered in the former opinion, although the record contains some new propositions arising upon the second trial which were not involved in the former appeal. (1) It is argued that there was no negligence on the part of the defendant; (2) That plaintiff assumed the risk incident to his employment; (3) that he was injured by the act of a fellow servant; and (4) that he was guilty of contributory negligence. Again, it is contended that the court erred in one of its instructions, that the jury erred in allowing interest on the amount of damages awarded plaintiff, and that the trial court should have set aside the verdict or corrected or reduced it upon defendant's motion.

Recurring now to these propositions in the order stated, it is apparent that the trial court submitted the case to the jury upon the theory outlined when the case was before us on the former appeal. Indeed, no complaint is made of the instructions in this respect. The following quotations from the charge of the court will indicate the theory upon which the case was submitted:

(6) It is the duty of the master to use reasonable care to warn and apprise the servant of any new or unexpected or unseen danger which may be known to the master and which is unknown to the servant, if he has reasonable ground to believe the same is unknown to the servant, and the same can not be ascertained by the servant in the exercise of ordinary prudence. If the master sends the servant into a place of danger, which danger is not known or apparent, open, or obvious to the servant, then the servant has a right to rely and believe, in the absence of knowledge to the contrary, that the master is sending him into a safe place, and he is not required, in the exercise of ordinary care, to go out of his way to search for hidden dangers or to inquire of the master as to its safety. If you believe from a preponderance of the evidence that when the plaintiff left the smoke box described in the evidence, and went below to perform other duties, a portion of the rivets holding the parts of said smoke box together were uncut, and that such remaining rivets were cut during his absence and without his knowledge, thus rendering the box unsafe to bear plaintiff's weight thereon, and the said foreman, Wurtsmith, knowing that plaintiff was ignorant of the fact that said rivets had been cut, or having reasonable grounds for believing him ignorant thereof, sent him to perform a task which required him to intrust himself upon the box in question, without warning him of the danger which he would thus encounter, and plaintiff, acting as a reasonably prudent man under the circumstances, obeyed the order and was injured by the falling of the box, then you will find that defendant was negligent.

(8) If you believe from the evidence that defendant's foreman, Wurtsmith, told plaintiff to go up and adjust the rope without warning him of the danger of getting upon said smoke box in its then condition, yet the plaintiff can not recover unless you further find that the said Wurtsmith knew that plaintiff did not know that all the rivets had been cut, or had reasonable ground for believing that plaintiff did not know such fact. Or if you believe from the evidence that the smoke box in question fell because of pressure applied by plaintiff in such a way as to tend to push the smoke box off of the bracket upon which it was resting, as he was pulling on the hook attached to the rope suspended from the beam above, in an effort to pull the hook down to attach it to the rope plaintiff had adjusted on the smoke box, and you further believe that such source of danger was as open to the observation and knowledge of plaintiff as it was to defendant, then plaintiff can not recover.

(10) One of the defenses urged by the defendant in this case is that the injury which plaintiff claims to have sustained was occasioned by the negligence of a fellow servant. You are instructed that if such defense is true that plaintiff can not recover. On this point the law is that, if a foreman is engaged in the work of superintending, then his negligence while so engaged whereby an inferior servant is injured will be the negligence of the master; but if notwithstanding his office of foreman he is engaged in the common work with the other servants, and while in that capacity an injury results to another servant from his want of ordinary care, such an injury would be one inflicted by one fellow servant upon another, and the master would not be liable. On the other hand, if the foreman, exercising the power conferred upon him by the master, sends a man who is working under his orders to a dangerous place to work or puts him at dangerous work, this will be the act of the master, and not the act of the fellow servant, because it is not the act of mere service with the other, but is an act of authority which can only be exercised by virtue of an office of vice principal for the master for whose acts the master is liable. In this case if you find that, while Wurtsmith and Jacobson were engaged together in the same work, the injury was inflicted upon Jacobson by reason of something which he and Wurtsmith were doing together, they would be fellow servants, and plaintiff could not recover. On the other hand, if at the time plaintiff was injured you find that Wurtsmith, as superintendent or boss, did negligently send or order Jacobson to perform the work of adjusting the hitch upon the smoke box, the danger of which was known to Wurtsmith but not known to Jacobson, and the said Wurtsmith did not have reasonable grounds to believe the same were known to plaintiff, then such negligence, if any, would be the negligence of defendant, and not the negligence of a fellow servant.

(12) In this case, if you find from the evidence that plaintiff was in as good a situation to know and appreciate the dangers involved in the work he was doing as was the defendant, and he continued in the work without any objection or protest, then and in that event he assumed the risk arising from doing the work in the way and under the conditions in which it was being done at the time of the accident. Or, if you find from the evidence that at the time plaintiff went upon the smoke box the last time to readjust the rope he either knew or by the exercise of ordinary care could have known that Wurtsmith had cut all the rivets, then and in that event he assumed all the risk incident to going upon the smoke box and readjusting the rope after all the rivets were cut.

(13) Where the servant is engaged in work the very nature of which contemplates the rendering of the place where he is working unsafe, then he assumes the hazard arising from the unsafety resulting as an incident of the work undertaken. While the master is not bound to guard the servant against perils naturally resulting from the very work being performed, he is bound not to enhance those perils by any act or omission of his own. If he is present in person or by his foreman assuming charge and direction of the work and the conduct of the employees, and by his own negligent act or direction creates a new or increased danger which is unknown to the servant, and which otherwise would not have attended the servant's employment, the servant does not assume the risk of injury from such source. In determining what the plaintiff did know and appreciate, or should have known and appreciated and the danger confronting him, and in determining what Wurtsmith did know, or as a reasonably prudent man should have known or believed, you should consider all the facts and circumstances surrounding the parties as disclosed by the evidence.

These instructions very clearly and concisely...