Law v. Bryant Asphaltic Paving Co.

• Decision Date: 10 April 1916
• Docket Number: No. 30586.,30586.
• Citation: 175 Iowa 747,157 N.W. 175
• Parties: LAW v. BRYANT ASPHALTIC PAVING CO.
• Court: Iowa Supreme Court

175 Iowa 747

157 N.W. 175

LAW

v.BRYANT ASPHALTIC PAVING CO.

No. 30586.

Supreme Court of Iowa.

April 10, 1916.

Appeal from District Court, Webster County; R. M. Wright, Judge.

Action at law to recover damages on account of personal injury. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.Kenyon, Kelleher & O'Connor, of Ft. Dodge, for appellant.

Price & Joyce, of Ft. Dodge, for appellee.

WEAVER, J.

The defendant as contractor was engaged in laying a pavement on one of the streets of Ft. Dodge. As a part of its equipment in the performance of the work it made use of a machine or device known as a concrete mixer, which was operated by steam power. The machine was provided with a boom or lifting beam on the outer end of which was fitted a hopper or “skip.” When lowered to the ground the skip was filled with materials for the mixture, then lifted to a position from which the contents were discharged into the mixing drum. The engineer operating the machine stood in a position where he could see the operation of the lift. The outfit was mounted on a truck, by which it was moved from place to place as might be needed in the prosecution of the work. The paving had been in the course of construction for a considerable period before the accident hereinafter mentioned, but the mixing machine had recently been moved from another location and placed at the intersection of Second Avenue North and Seventh street. It was so placed that the lifting beam extended over and across the path or walk ordinarily used by pedestrians. When the lift was raised, the path, unless otherwise obstructed, was clear; when lowered it was an obstruction to travel; and when in operation was a source of danger to any one passing under it. The street was a main thoroughfare leading into the business section of the city and many pedestrians made use of it. The plaintiff, who was employed in a grocery in the business section of the city, used the street in question in passing between his home and place of employment and had seen the mixing machine at other locations, but claims not to have been familiar with its method of operation. There is some conflict in the evidence as to how long the machine had been in this particular location before the accident, but the jury could properly have found that it had stood there some three or four days, but had not been in operation until the day when plaintiff was hurt. The jury could also have found that while the machine was thus standing idle no barricade was provided to divert the travel of pedestrians from the usual path at this point, and that in fact many people continued to pass back and forth without any apparent effort by defendant to interfere with such passage until after the accident. The plaintiff going to his work in the morning and returning to his home at noon of that day used the path by the machine and saw no indication of its operation. During his noon hour and before his return to work it appears that the machine was set in motion. As he approached the place a severe snowstorm had set in. He saw several men gathered in that vicinity, who did not appear to him to be engaged in work, and he drew the inference that the work had been suspended on account of the storm. He saw nothing and heard nothing which suggested to him that the machine was in operation; there was no barrier on or across the walk, and he had no warning of any kind that the passage was dangerous, and proceeding, as he and others had done before, he was struck by the descending skip and severely injured. This statement is, of course, in many respects denied by the defendant and its witnesses, but there is evidence upon which, as we have already said, the jury could find it substantially true.

The charge of negligence made against the defendant is in effect that it failed to exercise due care to erect a barrier to turn pedestrians from the path of danger, or to give warning of such danger, or to discover the plaintiff's danger in time to prevent his injury by the falling skip.

I. The question first in order is whether there is any evidence for the jury upon the charge of negligence made against the defendant.

[1][2][3] Upon this there is little room for argument. The defendant undoubtedly had the right, and the jury were so informed, to occupy the streets with its machine, and the mere fact that it thereby obstructed the travel did not render the defendant a wrongdoer or make it liable in damages for the inconvenience thereby occasioned to the public or to individuals. It was bound, however, to exercise that right with reasonable care to avoid injury to persons attempting to make such use of the street as was practicable; and if the machine was so located as to make passage along the walk unsafe, it was open to the jury to find that reasonable care required the erection of suitable barriers to call the attention of travelers to the danger and divert...