Johnson v. Corn Prods. Ref. Co.

• Decision Date: 20 November 1912
• Citation: 138 N.W. 516,157 Iowa 420
• Parties: JOHNSON v. CORN PRODUCTS REFINING CO.
• Court: Iowa Supreme Court

157 Iowa 420

138 N.W. 516

JOHNSON

v.CORN PRODUCTS REFINING CO.

Supreme Court of Iowa.

Nov. 20, 1912.

Appeal from District Court, Scott County; L. J. Horan, Judge.

Action for damages resulted in judgment against defendant, from which it appeals. Affirmed.Lane & Waterman, of Davenport, for appellant.

Walter H. Peterson and Bollinger & Block, all of Davenport, for appellee.

LADD, J.

1. The defendant is a manufacturer of edible products from corn, and plaintiff was in its employment as a common laborer. Prior thereto he had worked in car construction and repair shops, and at excavating for and laying sewers and tile. He had been working for defendant in the “roustabout gang,” of which one Lane was foreman, for some time, when required by the foreman to go to the blacksmith shop. This shop was about 18 feet square with a wooden floor about 3 feet above a granitoid floor 6 inches thick. The defendant, for some purpose in relation to the foundation, had caused a pit to be excavated beneath this shop about 11 feet deep, measuring from the wooden floor, and therein a pillar of dirt or sand covered with granitoid had been left as a sort of platform onto which the dirt from the bottom could be thrown, and then taken by a man on top of the pillar, and thrown through a hole in the wood floor about two feet square. The excavation is more particularly described by plaintiff, and, as the right to recover at all is challenged, his testimony with respect thereto and of how the injury was received may be set out somewhat fully.

“The excavation had been there before that day about a week. I did not have anything to do with the excavating or the digging of this trench or hole. There was a space cut off of the outside wall in the neighborhood of 3 1/2 feet wide, running back 8 feet, and then north 8 feet to the main wall of the steephouse. Then take it over in this side, we will say 4 feet, and there was another cut-off made. It ran to the bottom and then this strip here in the main wall of the steephouse was to be dug out so as to allow the masons to work on the floor of this cement foundation, and this space in here, along next the main foundation, was to be opened in order to give the masons a chance to lower the main foundation to the bottom of this pillar. And they left a pillar in the neighborhood of 3 1/2 or 4 feet square at the top that went to the bottom, standing there unprotected. It was about the same size at the bottom as at the top. A little bit wider at the bottom, probably a few inches. On the top of this pillar it was granitoid about 6 inches through. That granitoid covered pretty nearly the entire top. There was a three-cornered point right across the corner from the square that was unprotected with granitoid. The granitoid had been taken off it. The pillar was left for the purpose of throwing the material out of this excavation on top to enable the men to get through the floor to get it outside where it could be disposed of. On the day I was hurt before I went into this excavation I had been cleaning up inside of the building. I had nothing to do with excavating or digging in the hole before that day. I had never been in that hole. I had never seen it before. * * * Mr. Lane came to me in the afternoon around about 4 o'clock, and he was pretty well cleaned up on the inside, and he asked me to go with him to the blacksmith shop, and we went there, and he put me down on top of this granitoid to help the other fellow to throw up the dirt, because being so low that a man couldn't shovel only a few shovels until he would have to crawl out of it. I got into the hole by going over to this corner where the trapdoor is, and getting down on this granitoid and crawl through underneath. I crawled as far as the hole in the wooden floor. At this time there was a man down in the hole when I crawled in. He was shoveling dirt up onto this pier. At that time I was staying back to one side of the place, and there was another man shoveling. I was waiting until he got tired and came up, so as to make a change. I threw dirt through this little hole. They had one extension light with two lights on is all they had. That was hanging over the rafters, over to one side of the excavation. The lights were not directly over the hole. They were just to one side. To a certain extent they were thrown in, but not sufficient force in them to give a person a clear sight. It was just light enough so you could see to work, and that was all. There were two lights on one extension. I should judge the lights were probably 16 candle power. They had glossed over with dirt. You could hardly see through them. * * * When I went to the hole, I did not know what the pillar and walls were made of. I was on top of the pillar about half an hour. I went down in the hole because I was required by the foreman Mr. Lane. * * * The other man that was down there came up. I took his place. I did not take my shovel. There were shovels already in the pit. When I got down there, it was betwixt and between dark and light in the hole. It was light enough to work, but not to see what kind of material. I could not see what kind this material was when I got down. I was hurt as near as I can judge about 15 or 20 minutes after I got down. After I got down, I went ahead as I was directed. There was a little piece of dirt laying in the main wall of the steephouse that was to be removed. It was in the neighborhood--we will say it was 16 inches wide, a strip remaining of the pier that goes to the bottom, to give the room for the masons to work under this main wall. It was an addition to the pillar. It was not a part of the pillar. It was fastened on to the pillar on one side. It was cleared out so as to give the masons a chance to work on the main foundation, the main wall. We had already removed that. I started to remove that little piece that was along this main wall. It was attached on up against the main wall of the steephouse. It was an addition to the pillar, but then it was at the bottom. I did not at any time dig any dirt in under this pillar. I did not take any dirt off the pillar at all. I was working from the foundation or underneath the main foundation for to give room for the masons to extend that foundation. I did not remove any dirt from the pillar. As to what happened when I started to remove this dirt, well, I was bent over shoveling straightening up the back part underneath this pier or main foundation when the fall got me. Q. What was it that fell on you? A. I don't know. I was standing with my right side to the pillar. As near as I can get it, I was facing east. There was a foundation down there, part of the way down of the steephouse. I was working near that foundation. I suppose the foundation was made of brick and mortar, but I don't know. It might have been made of concrete, but the piers that were put in there were made of brick. I couldn't see what any of this was made of when I went down there. Q. Now, what effect did this caving in or falling have on you, Mr. Johnson? What happened to you then? A. I don't know. I didn't know anything until after I was taken to the office.”

Upon being recalled, after defendant had moved for a directed verdict, plaintiff testified further: “I was bending over, shoveling. I was probably eight or ten inches from the pillar. Q. And then what happened? A. And then there was--I noticed there was a squeeze that turned me half around. Q. What do you mean by ‘squeeze’? A. A caving. A caving of sand or dirt or some kind of soft material. Q. What happened then? A. Then I didn't know anything more until I came into the office. Q. Did you notice anything falling on you? A. No; just nothing only what fell at that slide. Q. Just describe what fell on you. What did it feel like, would you say? A. It was either dirt or sand or some soft material. At that time I couldn't tell. Q. How do you know that? A. Because it caught me around above the waist here, and buried me that deep [indicating]. I remember that. This fall came from the right side. It came from the south. It came from the pier, and then I lost consciousness. Q. Did I understand you to say you felt yourself being buried? What do you mean? I don't understand. A. Yes. I felt myself being buried by some soft material that closed in around. It struck me first on the shoulder here. Q. State whether or not you lost consciousness immediately. A. I didn't know at the time that they took me out at all. Q. But you felt yourself being buried by something? A. Yes, sir.”

On cross-examination: “Q. When you were asked this morning the plain simple question what was it that struck you and hurt you, and said ‘I don't know’-- A. Well, I don't know yet. Q. What have you been saying then--that sand and dirt came down and buried you. A. I just said that it seemed to me that was. Q. You don't mean now that you know anything about what...