Meier v. Way, Johnson, Lee & Co.

• Decision Date: 09 April 1907
• Court: Iowa Supreme Court
• Parties: MEIER v. WAY, JOHNSON, LEE & CO.

136 Iowa 302

111 N.W. 420

MEIER

v.WAY, JOHNSON, LEE & CO.

Supreme Court of Iowa.

April 9, 1907.

Appeal from District Court, Kossuth County; W. B. Quarton, Judge.

Action to recover damages resulting from the death of Emil Meier due to defendant's negligence in failing to warn him of the danger of the place when he was set to work, and to defendant's negligence in ordering him into an unsafe place to work. Defendant denied all negligence, pleaded contributory negligence and assumption of risk. Upon these issues the case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals. Affirmed.Carr, Hewitt, Parker & Wright and Sullivan & McMahon, for appellant.

Healy Bros. & Kelleher and P. T. Vaughn, for appellee.

DEEMER, J.

Prior to and on July 28, 1903, defendant, a corporation owned and was operating a line of elevators, one of which was at Hanna, a small station on the line of the Minneapolis & St. Louis Railway. One Fox was in its employ in connection with the last-named elevator. On or about July 25, 1903, defendant was informed that Fox was short some oats, and on or about the 27th of that month one Granger, defendant's superintendent, went to investigate the shortage. When Granger appeared Fox notified him that he had discovered some oats in a shipping bin of the elevator which he did not know about, and Granger notified him (Fox) that these must be weighed and again placed in the elevator, directing Fox to procure a team to haul the oats. Thereupon Fox arranged with the father of plaintiff's intestate for a man and a team to appear at the elevatornext morning. When the morning came, Emil Meier, the deceased, a boy of a little over 16 years of age, appeared with a team, and undertook the work of transferring the oats. The boy leveled the oats in the wagon and drove the team. While removing the oats some obstructions interfered with their free flowage from the bin, and it is claimed that Fox sent the boy into the apartment for the purpose of having him remove this obstruction, and that while there the oats fell in upon him and smothered him to death. There is no doubt that the boy was smothered to death by reason of the oats falling over and upon him; but defendant denies that it, or any of its agents, ordered the boy to go into the bin or that they knew he was there until some time after he had disappeared. Many points are relied upon for a reversal, to some of which we shall give attention. That the bin was a dangerous place for a boy either at work or in play is frankly conceded, but it is claimed that the death of the intestate was an accident, for which no one is responsible. That question, as we think, was clearly for a jury, and, with its finding in this respect, we shall not interfere. McGovern v. Railroad, 25 N. E. 373, 123 N. Y. 280;Grimmelman v. Railroad Co., 101 Iowa, 74, 70 N. W. 90. Both Granger and Fox testified that they did not send the boy into the bin, and each said on the witness stand that they told him not to go. The boy is dead and, of course, his lips are sealed. It appears, however, from some of the testimony that within five minutes from the time the boy was last seen, plaintiff, who is his father, was called from his field by Granger, and that he ran over to the elevator as fast as he could. When he arrived there, attempts were being made to rescue the boy by going into the bin and attempting to secure his removal from above. This failing, a hole was chopped in the bottom of the bin, and the body was removed in this way some 25 or 30 minutes from the time the boy was last seen alive. Plaintiff testified that when he appeared after Granger had called to him, Fox said that he (Fox) had sent the boy up into the bin, and that they could not find him. Plaintiff's wife and another son almost immediately appeared upon the scene, and to each of them it is claimed that Fox said he had sent the boy into the bin to remove a board which was on the spout leading from the loading bin. When these declarations were made, all parties seemed to think the boy was still alive and efforts were then being made to extricate him, but all without success until he was suffocated. That the declarations of Fox were admissible as part of the res gestæ is too clear for argument. Alsever v. Railroad, 115 Iowa 338, 88 N. W. 841, 56 L. R. A. 748;Keyes v. Cedar Falls, 107 Iowa, 509, 78 N. W. 227; Christopherson v. Railroad Co. (Iowa) 109 N. W. R. 1077, and cases cited.

2. It is claimed that Fox was nothing but a fellow servant for whose acts defendant was not responsible. The testimony, however, shows that he (Fox) was in charge of the elevator, that he was accustomed to employ men to assist him therein, that deceased was employed by him, and that he gave deceased, as well as others, directions as to their work. In ordering deceased into the bin, and directing him as to his work, Fox was clearly the alter ego of defendant and...