Kregel v. Kann, No. 52537

• Court: United States State Supreme Court of Iowa
• Writing for the Court: MASON; RAWLINGS; MOORE
• Citation: 152 N.W.2d 534,260 Iowa 1330
• Parties: Ray KREGEL, Appellee, v. Ray H. KANN, Appellant.
• Docket Number: No. 52537
• Decision Date: 31 August 1967

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152 N.W.2d 534 260 Iowa 1330 Ray KREGEL, Appellee,
v.
Ray H. KANN, Appellant. No. 52537. Supreme Court of Iowa. Aug. 31, 1967.

[260 Iowa 1331]

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C. F. Neylan and Hart & Hart, Elkader, for appellant.

Alfred E. Hughes, Dubuque, and L. J. Degnan and Hunt & Degnan, Guttenberg, for appellee.

MASON, Justice.

Ray Kregel brought this law action to recover for personal injuries suffered while working as a farm employee for defendant Kann. Defendant appeals from judgment on jury verdict for plaintiff. The appeal involves the sufficiency of the evidence of defendant's negligence as the cause of plaintiff's injuries.

I. In the fall of the year defendant, owner and operator of a farm in Clayton County, would make cane syrup. This involved cutting, stripping and pressing cane which was then cooked. One of plaintiff's duties was to split old fence posts to be used as fuel for the cooking. We are told splitting of the posts is necessary to give a hot fire. The posts were usually 6 1/2 feet long and 6 1/2 inches in diameter and had been set in [260 Iowa 1332] the ground seven to ten years. Some brace posts and corner posts which had to be shortened after they were split were also used as fuel.

Plaintiff, age 70 at the time of trial, although never steadily employed by defendant, had worked for him approximately 35 years before the accident. On October 5, 1963, while splitting posts plaintiff used an old double-bitted ax with a bowed handle which defendant had furnished and directed plaintiff to use. As he started to split one of the posts plaintiff aimed the ax at the center, saw a knot in the post some distance from the top and hit the post 'a pretty good lick', splitting it right up to the knot. When he decided to follow the split within six or seven inches from the knot he made an extra effort to hit the post again. He asserts as he did so the ax hit the knot causing it to fly out and strike plaintiff's left eye.

Defendant had furnished plaintiff two double-bitted axes and one wedge to be used in splitting the old fence posts. The wedge had to be hammered into the wood to force it apart. Plaintiff contends the wedge could be used only with a single-bitted ax to serve as a mall. Although defendant has owned such an ax which plaintiff used in previous years and now contends it would have been a beter ax to use, it had a broken handle. Defendant said he did not have time to fix it, so plaintiff used the furnished ax.

Other testimony will be mentioned later.

Plaintiff alleged defendant was negligent in failing to provide a safe place to work and safe appliances to work with, and in failing to warn plaintiff of the dangers incident to splitting posts. Defendant denied plaintiff's claim and alleged he had assumed the risk from any claimed negligence on defendant's part.

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In addition to his own testimony plaintiff offered that of the treating physician and an expert witness on working with timber, introduced two exhibits--the ax defendant furnished and a new one. Defendant offered no evidence.

II. The trial court submitted to the jury only one specification of negligence, 'Failure to provide plaintiff with reasonably suitable and safe appliances.'

[260 Iowa 1333] As indicated, defendant questions the sufficiency of the evidence to generate a jury question as to defendant's negligence proximately causing the injury. He contends his motions for directed verdict and judgment notwithstanding the verdict should have been sustained.

In considering this question we view the evidence in the light most favorable to plaintiff. Davidson v. Cooney, Iowa, 147 N.W.2d 819, 822; Amended Rule 344(f)2, Rules of Civil Procedure.

III. Defendant asserts an employer is required to exercise only reasonable care to furnish his employee reasonably safe and suitable appliances and is not required to furnish the latest, best and safest tools with which to work.

'It is a settled rule that an employer must use reasonable care to provide and maintain for his employees reasonably suitable and safe appliances, machinery and tools with which to work.' Frederick v. Goff, 251 Iowa 290, 295, 100 N.W.2d 624, 627 and citations. See also Erickson v. Erickson, 250 Iowa 491, 498, 94 N.W.2d 728, 732; Mooney v. Nagel, 251 Iowa 1052, 1057, 103 N.W.2d 76, 79; Calkins v. Sandven, 256 Iowa 682, 694, 129 N.W.2d 1, 8.

However, the employer is not an insurer of the safety of the tools, machinery or appliances, nor of the safety of the employee in using the instrumentalities furnished but is only liable for negligence. Sample v. Schwenck, 243 Iowa 1189, 1196, 54 N.W.2d 527, 531; Anderson v. Sheuerman, 232 Iowa 705, 708, 6 N.W.2d 125--127 and citations; Rehard v. Miles, 227 Iowa 1290, 1295, 290 N.W. 702, 704--705; In re Estate of Howorth, 250 Iowa 752, 753, 94 N.W.2d 779, 780; 56 C.J.S. Master and Servant § 202; 35 Am. Jur., Master and Servant, sections 175 and 176.

The employer must exercise reasonable care to eliminate dangers which are not the usual or ordinary incidents of the service when he has exercised such care. Sample v. Schwenck; Anderson v. Sheuerman both supra.

IV. Mr. Tuecke, with 40 years' experience around woodcutting as an occupation and a familiarity with tools ordinarily used by people working in timber, including double-bitted axes, [260 Iowa 1334] used the ax furnished plaintiff in illustrating his testimoney. He compared its present condition with the new ax offered in evidence; described the furnished ax as an old double-bitted ax with three-quarters of an inch ground or filed away, the temper gone; it was worn out, blunt and very dull; the ax was not tapered, the cutting edge was gone and it would not draw or cut smoothly; a blunt ax will bounce of knock; the throat was gone. In his opinion the eye of the ax was so close to the cutting edge it would cause it to deflect and glance, whereas an ax with a larger cutting edge would cut.

In response to a hypothetical question as to the effect of the bowed handle Mr. Tuecke testified it would make quite a difference as 'you wouldn't get the mark you were striking at, miss the mark.' Answering another hypothetical, the witness said the furnished ax would knock a knot loose and cause it to fly rather than cut it as a new ax would. It was his conclusion the furnished ax was not safe for splitting posts. He detailed other reasons for his opinion.

Defendant had furnished plaintiff another ax, described as a good one, to be used only in shortening the corner or brace posts after splitting them. Although plaintiff had this ax close to where he was working, defendant had told him because

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of the possibility of staples and wire in the posts he was not to use it in splitting. Plaintiff admitted it wouldn't be good to use 'a good ax' where there were staples and wire. Mr. Tuecke gave similar testimony. Plaintiff had used the furnished ax two days in splitting three to four dozen posts before the accident occurred.

Plaintiff described...