Lunde v. Cudahy Packing Co.

• Decision Date: 27 October 1908
• Citation: 117 N.W. 1063,139 Iowa 688
• Parties: LUNDE v. CUDAHY PACKING CO.
• Court: Iowa Supreme Court

139 Iowa 688

117 N.W. 1063

LUNDE

v.CUDAHY PACKING CO.

Supreme Court of Iowa.

Oct. 27, 1908.

Appeal from District Court, Woodbury County; Frank R. Gaynor, Judge.

Action for the recovery of damages for the death of Emil Lunde, which is alleged to have been occasioned by the defendant's negligence. Verdict and judgment for plaintiff, and the defendant appeals. Affirmed.M. L. Sears, for appellant.

F. E. Gill, for appellee.

WEAVER, J.

The defendant corporation is engaged in the business of killing, curing, packing, and selling meats at Sioux City, Iowa. About two or three weeks prior to the date of the accident Emil Lunde, a boy of about 17 years, was engaged to labor in the engine room of the defendant's works. Lunde had no prior experience in such service, but is described as a steady, sober, careful workman. Among the duties required of him was the oiling of the machinery or of certain portions of it. Included in this machinery was an engine, to which was attached a large and heavy fly wheel about 16 feet in diameter, the lower part revolving in a pit in the floor. On the south side of the fly wheel and parallel with it was an apparatus known as the “ice machine.” Between the wheel and the ice machine there was a narrow passageway, intercepted or obstructed midway by the south axle of the fly wheel and the bearing in which it rested. To oil this bearing the usual and appropriate method was for the employé to enter this passageway from the east end. The wheel pit along this end of the passageway was guarded by a double line of gas pipe rails, fastened to posts standing close to the edge. The upper rail was about 36 inches, and the lower 25 inches above the floor surface. The passage was floored with cement, and was about 9 1/2 inches in width. The edge of the rim of the wheel hung within about 5 inches of the guard rail, but the spokes not being of thickness equal to the width of the rim were 12 inches from the edge of the pit. At the entrance, and nearly opposite the rim of the wheel, this passage was further narrowed by a shive projecting slightly over the path, and carrying a slowly moving rope which operated an oil pump. After passing this point the ice machine curved slightly away from the cement path, giving a somewhat wider passage for the remainder of the way. The width does not definitely appear in the record, but is estimated by some witnesses as two feet or a little more. The testimony also tends to show that in passing the narrowest point a person entering from the east was required to step in sidewise to avoid contract with the shive and rope above mentioned, and that for the remainder of the distance along the cement path he could walk straight ahead, being careful to step one foot directly ahead of the other. There was sometimes frost on the ice box, pipes, and machinery, and a pail of oil sometimes stood on the frame. At times the path was a little oily. The fly wheel pit and passage west of the axle was not guarded by railing or otherwise, and employés were not expected to enter from that side to oil the bearings. Lunde worked on the night shift, and on the night of June 13, 1907, was on duty with the engineer, one Stephenson. It was part of his duty to oil the fly wheel bearings, taking the course we have already indicated. It was also proper for him to inspect the bearings at times to ascertain whether they were becoming heated. About midnight of the day named Lunde was alone in the vicinity of the fly wheel and ice machine. The engineer, Stephenson, being engaged some distance away, heard an unusual sound, and coming to the place found Lunde lying on the floor with broken legs and arms and other severe injuries, of which he soon died. He was not wholly unconscious when discovered, and when asked how the accident occurred, responded, “I don't know,” but beyond this he seems to have been unable to speak. The top guard rail, which had been straight prior to the accident was found to be bent down, and slightly out near the east end and about two feet from the rim of the fly wheel. Lunde's shoes were torn across the toe and doubled back. His clothes were not torn, but were more or less saturated with oil. A little blood was found on the ice pipe east and south of the fly wheel, in the direction of the place where the body was found. The rope running on the shive at the east entrance to the passage was pulled off and hanging in the wheel pit. Later Lunde's wrench was found in the pit. The petition charges the defendant with negligence leading to the death of the intestate, in the following particulars: First, in failing to furnish the deceased a safe place to work; second, in failing to properly warn or instruct the deceased as to the proper manner of doing the work, and how to avoid danger in its performance. The answer denies all negligence on the part of the defendant, alleges contributory negligence on the part of the deceased, and that he assumed the risk of the danger to which he was exposed.

1. A verdict having been returned for the plaintiff, defendant moved for a new trial because of the alleged misconduct of a juror, one Fred Hewitt. The motion is supported by the affidavit of appellant's counsel to the effect that, in his examination as to his qualification to sit as a juror, said Hewitt stated that he had no bias or prejudice in cases of this nature; that he could, and would, give the case impartial and fair consideration, and return a fair verdict upon the evidence and the law as given by the court. Immediately after the return of the verdict another jury was being impaneled for the trial of a personal injury case against the same defendant, and, the same juror being called into the box, he was again subjected to a similar examination, and answered that he had a bias and prejudice in this class of cases, which might or would have an influence on the verdict, on which answers a challenge to the juror was sustained. Counter affidavits were submitted tending to show that the juror was not in fact interrogated as to his personal feelings or prejudices as to cases of this kind in general, and that, so far as the juror had in fact any bias or prejudice, it was in favor of the defense. The overruling of this motion is assigned for error. The assignment is not well grounded. No bill of exceptions or other record was preserved of the examination of the juror, and the matter and manner of it is presented upon affidavits which put the alleged misconduct of the juror in issue, and, the finding of the court upon the disputed facts not being without support in the evidence, we cannot disturb it. Even if this were not the case, there is no such necessary discrepancy between the two statements of the juror as to justify us in holding him guilty of misconduct such as will vitiate the verdict in the earlier case.

2. The court submitted to the jury, with appropriate instructions, the question of the defendant's alleged negligence in failing to properly instruct and warn the deceased. This is said to be erroneous, because of the entire lack of evidence to support the charge. We do not so read the record. There was evidence, on the part of both the plaintiff and defendant, tending to show the nature and extent of the instructions given. They were mostly of a general nature, and few of a specific character. It was not for the trial court, nor is it for this court, to say that as a matter of law such instructions were sufficient, and filled the full measure of the defendant's duty in the premises. Whether such was the case requires a consideration of the age and experience of the deceased, the peculiar hazard to which his service exposed him, whether they were patent to his observation as an ordinarily prudent person, and all the pertinent circumstances surrounding the transaction, and it was clearly within the province of the jury to draw therefrom the inference or conclusion whether due care had been exercised. There was no error in submitting this issue to the verdict of the jury.

3. The defendant asked the court to instruct the jury that, if the deceased was injured by reason of going in between the frame of the ice machine and the fly wheel on the west side, where there were no guards, he would be guilty of contributory negligence, and plaintiff could therefore not recover. The request was refused. The refusal was not erroneous. The court on its own motion carefully charged the jury that they could not find for the plaintiff unless they were satisfied from all the evidence that intestate was exercising reasonable care for his own safety, and did not by his own negligence in any way contribute to his injury, and we think it would have been an invasion of the province of the jury to charge that the mere fact of going between the wheel and frame on the west side, no matter for what purpose or under what circumstances, was negligence as a matter of law. Moreover, there is no evidence whatever that he did enter the passage on the west side; and, if it be true, as argued, that there was no occasion for his going there, and his duty did not call him there, his administratrix is entitled to the benefit of the presumption that he did not thus recklessly and unnecessarily expose himself to deadly peril.

4. It is averred that the court erroneously placed upon defendant the burden of showing that the deceased did not exercise due care for his own safety. This objection is based upon a misconception of the force and effect of the charge given by the court. It did not relieve the plaintiff from the burden of showing due care on the part of deceased. In the fifth paragraph the jury were told that the mere fact that Emil Lunde was killed while in defendant's service and by its machinery afforded no presumption of defendant's negligence, and that plaintiff was bound to show, not only that such accident was chargeable to defendant's negligence, but also that he did not, by his own conduct,...