Nelson v. Lake Mills Canning Co.
| Citation | 188 N.W. 990,193 Iowa 1346 |
| Decision Date | 23 June 1922 |
| Docket Number | No. 34431.,34431. |
| Parties | NELSON v. LAKE MILLS CANNING CO. (TWO CASES). |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Winnebago County; C. H. Kelley, Judge.
Actions at law to recover damages on account of the death of Kenneth Norman Nelson. There was a trial to a jury, resulting in a directed verdict and judgment for the defendant in each case, and plaintiff appeals. The material facts are stated in the opinion. Affirmed.Duncan Rule, of Mason City, and Kingland, Dakin & Thonn, of Lake Mills, for appellant.
Senneff, Bliss, Witwer & Senneff, of Mason City, for appellee.
Kenneth Norman Nelson, a minor child of six years, son of N. E. Nelson residing at the town of Lake Mills, Iowa, met his death under circumstances substantially as follows: In Lake Mills is a street known as Park avenue, extending north and south and intersecting the right of way of the Minneapolis & St. Louis Railway. Immediately south of the right of way and on the west side of Park avenue the defendant owns a lot fronting 167 feet on the avenue and extending to the west 305 feet. On these premises the company maintains and operated a canning establishment. The main building, 48.6 feet in width and 204 feet in length, stands immediately adjacent to the railway grounds. Adjoining the main building on the south is a driveway or passage 25 feet wide. Extending along the south side of the driveway is the company's office, standing about 5 feet from the sidewalk. West of the office is a water tank, and to the west of the tank is a building known as the husking shed, 144 feet in length and 36 feet in width. Just south of the office is a platform scale from which another driveway 15 feet wide extends along the south side of the husking shed to what is known as the dump house. Customers arriving with loads of corn drive in from the avenue to the platform scale and thence up a grade to the floor of the dump house, about 5 feet above the ground level. Under this elevated floor was a conveyor, into which the unhusked corn was dumped from the wagons in which it was delivered, and thence by an endless belt or chain carried across and over the driveway into the husking shed. From the driveway there was an opening into the space under the floor where the conveyor was located. The size of the opening is the subject of some discrepancy in the evidence, but it was sufficient to afforda view of the conveyor when in operation and to permit a child to crawl or climb through it. The operation of the conveyor was effected by the use of a gasoline motor and controlled by a lever in charge of an employee on the dumping floor. In the operation of the plant, the husks and other refuse were accumulated in a heap at the extreme west end of the company's premises. This waste product was to a considerable extent and with the company's consent made use of by people living in the neighborhood as feed for domestic animals and poultry, children being often employed in hauling it away in their play wagons to their several homes. This husk pile was reached from Park avenue by making use of the driveway by the side of the dump house. Among the children making use of the privilege thus afforded were the two young sons of the plaintiff herein. The older of these boys, Victor, was nine years old and the younger, Kenneth, six years. On the day in question the lads had hauled home a load of husks on their coaster wagon, and at the request or direction of their mother returned to the canning plant for another supply. As they reached the opening under the dump house, the conveyor was not at the moment in motion. The only eyewitness of what followed is the boy Victor, whose testimony is abstracted by the appellant as follows:
The same witness on cross-examination testified as follows:
“That it was after school when he went down there, and that they went down after corn, and while coming out stopped by the dump shed; that his brother Kenneth crawled up over the wall and got into the building, that he did not help him crawl up there; that he did not walk inside under the building, but crawled right through; that he didn't see him just after he had crawled over the wall; that he did not get up on a little box and crawl upon the corn conveyor; that he did not walk any after he got under there; that there was no box under the dump shed, except a big box with stuff in, and that he did not step on that; that he saw him after he got up in there, just when he got caught; that his head was higher than the conveyor belt; that the chain conveyor ran in at the east and under the dump shed, and that Kenneth climbed in at the east end; that he would not have to walk any distance to get to the chain; that his brother climbed in right by the chain.”
On cross-examination he testified:
“That he saw Kenneth when he crawled up into the conveyor; that the other boy that was with them told him to get out, and he did not hear it; that the conveyor belt was then started, and caught Kenneth; and that he tried to get out, but that the conveyor came around over his head and hit him.”
On the theory that the death of the unfortunate child is chargeable to the negligence of the defendant, the plaintiff brings an action in his own right for the recovery of damages, and as administrator he brings another action to recover damages in favor of the estate of the deceased.
By agreement of the parties the issues were consolidated for the purposes of the trial. At the close of the testimony on part of plaintiff, the trial court sustained a motion by the defendant for a directed verdict in its favor because of the insufficiency of the evidence to support a recovery of damages. From this ruling and the judgment rendered on the verdict, the plaintiff has appealed. The theory on which the appellant charges negligence is that the defendant did not use due care to close or guard the opening through which...
To continue reading
Request your trial