Lang v. Hedrick

• Decision Date: 14 March 1941
• Docket Number: No. 45222.,45222.
• Citation: 229 Iowa 766,295 N.W. 107
• Parties: LANG v. HEDRICK.
• Court: Iowa Supreme Court

229 Iowa 766

295 N.W. 107

LANG

v.HEDRICK.

No. 45222.

Supreme Court of Iowa.

Dec. 10, 1940.

Rehearing Denied March 14, 1941.

Appeal from District Court, Dubuque County; Hugh Stuart, Judge.

An action at law for damages suffered by the plaintiff because of personal injuries received through the alleged negligence of the defendant in the operation of a buzz saw in the cutting of wood. The plaintiff appealed from a judgment for defendant entered at the direction of the court.

Reversed.

RICHARDS, C. J., and HAMILTON, J., dissenting.John J. Kintzinger and John L. Duffy, both of Dubuque, for appellant.

Czizek & Czizek, of Dubuque, for appellee.

BLISS, Justice.

Plaintiff alleged that defendant was the owner and operator of a farm in Dubuque County, Iowa, and that he owned and operated a wood-cutting machine as a part of his equipment in carrying on his business of farming. Plaintiff was a man forty-six years old and was operating a truck farm in the same neighborhood. On or about September 22, 1938, he was temporarily employed by the defendant to help him saw cord wood into one-foot lengths. On that day, he alleges a stick of wood which he was holding to the teeth of the saw was caught and thrown upward, thereby bringing his right hand into contact with the teeth and severely cutting it. As grounds of negligence, he alleged, (1) that defendant was negligent in failing to have any proper guard or safety appliances on said saw; (2) in putting plaintiff to work without proper instruction or warning concerning the danger attendant upon the operation of said sawing machine, which negligence of defendant was the proximate cause of plaintiff's injuries; (3) that the defendant was negligent in permitting said wood cutting machine to operate with a saw other and different than a saw regularly and ordinarily used in cutting wood crosswise with a power machine.

For answer, the defendant admitted the ownership and operation of the saw in carrying on his business of farming, the employment of plaintiff, his assistance with the work, and alleged that the injury was due to the negligence of the plaintiff. Further answering, the defendant denied generally the allegations of the petition as amended, and alleged: “that the plaintiff was familiar with and experienced in the operation of said wood cutting machine; knew the construction and operation of the same and knew or ought to have known of defects, if any, therein; and appreciated any risks and dangers attendant upon the method with which the work was being done and the use of the appliances therefor, but notwithstanding such knowledge, he continued to operate such machine and assumed the risk incident thereto.” In his reply, plaintiff denied that he was guilty of contributory negligence, or that he assumed any risk.

A description of the sawing equipment is necessary for a better understanding of the questions involved. It was operated by an ordinary farm tractor. The saw, itself, was thirty inches in diameter, and was fastened at its center to the end of a steel shaft. On the other end of the shaft was a belt wheel. The shaft was fastened to a plank and iron frame, which was bolted to each side of the radiator of the tractor, with the saw perpendicular on the left side of the frame, and just beyond the left side of the radiator. Directly in front of the framework just described, and a part of it, was what is described in the record as the “buck.” This consisted of an iron frame in the shape of an inverted capital L, on the top part of which was a wooden platform, which, from the photograph, appears to have been about three feet square. The top of the upright portion of the frame was fastened to the center of the backside of the platform, and two iron braces extended from each front corner, diagonally down and were bolted at the same place close to the bottom of the upright. The lower end of this upright was so fastened at its stationary foot as to permit the “buck” to be moved backward and forward. When pushed backward or toward the saw, the left side of the platform was parallel to, and about three inches distant from the right surface of the saw. The piece of wood to be sawed was placed on the top of the platform and held in place by a man standing to the left of the saw, and facing it. Another man stood to the right of the saw and held the end of the stick which was to be cut off. The platform was then pushed toward the teeth of the revolving saw, with the desired length projecting to the right of the saw. When the first length was cut off, the platform was tilted forward and the man on the left pushed the stick along the platform and the process was repeated.

There was no hood over the saw, nor guards of any kind about it. The saw was driven by a belt to the drive wheel of the tractor. The plaintiff's job was to stand on the left and feed the piece of wood to the saw. He was familiar with this sawing outfit and with its construction and operation. For three winters just previous, he had been so employed in sawing wood for the defendant with this identical machine. His job, usually, had been in operating the buck by moving the log along the platform and pushing it in to the saw. At one time, he took the outfit to his own home and used it in sawing his wood, without the presence or assistance of the defendant. He estimated that he had assisted in sawing from one hundred to one hundred fifty cords of wood with this outfit. He had never had any difficulty in working about or with it. The record is not very clear as to just how he was hurt. The stick was a small one, four feet long and three or four inches thick. They had sawed off two one-foot lengths, and there remained but half the stick to be cut in two. As he and his co-worker at the other end of the stick pushed it against the teeth of the saw, for some unaccountable reason, the stick was thrown up and forward, and his hand struck the saw. It had never happened before. This sawing outfit had been operated in the manner described for twelve years or more.

Plaintiff's testimony as to whether the absence of any guards protecting the saw had anything to do with his injury is conflicting. While he testified that his injury was not sustained because of the absence of guards, and that the machine was not defective because of such absence, he also testified that the operation of the machine could have been made safe by a hood over the saw, such as another machine in the neighborhood had, or by a brace which he described which would have prevented the wood from clinching on the saw and kicking up, as the stick did which threw his hand into the saw. He also testified that if there had been such a hood or such a brace his hand could not have been thrown against the saw. He testified that during the three years that he used the outfit, he thought that it was reasonably safe and that there was no danger of getting cut on the saw, except that “if a man got foolish around that saw he could, but not by a man operating that saw.” Respecting what took place when he was injured, he testified: “Here was a little piece of wood about 4 inches in diameter that suddenly kicked up for some reason; all these years it had never done that; I don't know the reason for it. * * * The saw grabbed the stick, maybe there was a knot there or something, it caught the stick.” He was familiar with other wood sawing machines of the character of this one. He said: “There are three or four machines out there and I worked on all of them.” He testified that from his experience and knowledge of these particular machines, and this machine in question, a guard could have been placed on that machine. There was evidence of a sawing machine which had a hood over the saw, and as the wood was pushed against the teeth, it would push up the hood as the saw cut into the wood. As described by the plaintiff: “As the wood is pushed forward it is against the hood and the teeth of the saw. If you had a piece of wood three or four inches in diameter and pushed it into the saw, you would push the wood three or four inches and when the wood is pushed or pulled away from the saw the hood comes right back.”

I. The first ground of negligence alleged in the substituted petition is the failure to have any guards or safety appliances about the saw. This failure, which is conceded, coupled with the affirmative defense that plaintiff knew of their absence, and was familiar with the construction of the sawing outfit, and its operation, and assumed any risks incident thereto, presents the first question for consideration; that is, whether the court erred in finding there was no fact issue involved therein for the jury.

[1] The determination of this question involves the construction of Sections 1487 and 1495 of Chapter 73 (Health and Safety Appliances) of the Code of 1939, in effect at the time of the injury. The appellant concedes that the sawing outfit was being used in an agricultural pursuit, and he, therefore, expressly states that, because of the last sentence of Section 1487, he makes no claim that under said Section the appellee was required by statute to place guards or other safety appliances about the saw. He does contend that it was negligence, as a matter of common law, to not have suitable protection against the hazards of such an implement. He also contends that Section 1495 is applicable to the case, and that because thereof the defense of assumption of risk was not available to the appellee, under the circumstances. On the other hand, appellee urges that the two sections should be construed together, and that the last sentence of Section 1487 should be construed as applying also to Section 1495, and that the latter section has no application to employees and employers engaged in agricultural pursuits. The fact that, in the various codifications, the two sections have always been placed in the same chapters, gives some apparent force to the appellee's...