Nester v. H. Korn Baking Co.
Decision Date | 15 December 1922 |
Docket Number | 35042 |
Citation | 190 N.W. 949,194 Iowa 1270 |
Parties | KAROLINE NESTER, Appellee, v. H. KORN BAKING COMPANY, Appellant |
Court | Iowa Supreme Court |
Appeal from Scott District Court.--WILLIAM THEOPHILUS, Judge.
APPEAL from an award and judgment in the district court under the Workmen's Compensation Law. Defendant appeals.
Affirmed.
Lane & Waterman, for appellant.
Henry Vollmer, for appellee.
Kasper Nester, the husband of claimant, was one of the employees of the H. Korn Baking Company, appellant, in the city of Davenport, and was killed on the morning of April 25, 1910 by being struck by a locomotive. He was employed by appellant as a stableman, and his duties, in addition to taking care of its horses, required him to make delivery of freight to and from depots and to haul ashes away from its plant. He usually went on duty about 3 o'clock in the morning and worked until 5 P. M. When he went to his home in the morning for breakfast, he was accustomed to drive one of appellant's horses, which he used in hauling freight and ashes. There was a railroad track in the street abutting upon his residence. He usually tied the horse to a telephone pole a short distance from his residence, but on the morning in question, he left the horse unhitched in the street directly in front of the kitchen in which he ate his breakfast, and where he could watch it. Discovering the approach of a late train, he ran to the street, caught hold of the horse, and, while attempting to quiet it and get it out of the way of the train, he was struck by the engine and killed. The evidence showed that, while breakfast was served to its employees by appellant at its plant, the deceased always went home for his breakfast. The testimony also tended to show that employees of appellant were instructed not to leave horses unhitched in the street, and that a weight was furnished them for use when a hitching post was not convenient. Deceased had no weight with him at the time of the accident.
It is the claim of appellant that the injuries resulting in the death of Nester did not arise in the course of or out of his employment, and that he was killed while upon an errand for himself; that he had removed a pan of ashes from his residence and placed it in the wagon for the purpose of hauling the ashes to a dump.
It is also contended that, but for the violation of the orders and directions given him by appellant not to leave his horse unhitched in the street, the accident could not have happened, and that, therefore, claimant should be denied compensation.
It is further contended by appellant that the horse was left unhitched, in violation of an ordinance of the city of Davenport, and that Nester was, therefore, guilty of negligence. If the injuries of deceased were received in the course and grew out of his employment, compensation was properly awarded, notwithstanding such negligence, if any, upon his part as was shown by the evidence. Christensen v. Hauff Bros., 193 Iowa 1084, 188 N.W. 851.
The evidence further shows that it was the custom of deceased to drive one of appellant's horses when he went home for breakfast, and that this was with the knowledge, consent, and approval of appellant. The secretary and manager of appellant testified that it was the understanding that deceased could go home for breakfast, and that it was to the interest of both parties that he use the horse and wagon for that purpose. The violation of the city ordinance and of appellant's instructions was, at most, technical, as deceased's residence was near the street, and he remained at all times in view of the horse and wagon, and as soon as he heard the train approaching, ran to the rescue of the horse; and his death occurred while he was attempting to control it and prevent its being injured.
It is true that deceased was not, at the time, at work at appellant's barns, or hauling freight to or from a depot in the city of Davenport, but he was in charge of the horse and wagon of appellant, which he used in hauling freight and ashes for appellant. He had stepped aside from his customary duties only long enough to take...
To continue reading
Request your trial