Newbury v. Getchell & Martin Lumber & Mfg. Co.

• Decision Date: 12 December 1896
• Court: Iowa Supreme Court
• Parties: NEWBURY v. GETCHELL & MARTIN LUMBER & MANUFACTURING CO.

100 Iowa 441

69 N.W. 743

NEWBURY

v.GETCHELL & MARTIN LUMBER & MANUFACTURING CO.

Supreme Court of Iowa.

Dec. 12, 1896.

Appeal from district court, Polk county; W. A. Spurrier, Judge.

Action at law to recover damages for personal injuries sustained by plaintiff while employed by defendant in its mill. Verdict and judgment for plaintiff, and defendant appeals. Reversed.Guernsey & Bailey and Barcroft & McCaughan, for appellant.

McVey & Cheshire, for appellee.

DEEMER, J.

The defendant is a corporation engaged in the manufacture of sash, doors, blinds, and other woodwork. In the month of September, 1891, the plaintiff, Harry A. Newbury, a boy 17 years of age, entered into the employ of the defendant, to work in and about its factory. He was put to work in a room known as the “Sash and Blind Department,” over which one Page was foreman. He was engaged as a sort of a “roustabout,” and one of his duties was to clean up the refuse pieces of wood that accumulated from time to time in the room where he worked, and to saw them into proper lengths for kindling. Plaintiff had done this cleaning and sawing on an average of about once every other day from September, 1891, to some time in the month of May, 1892, at which time the accident happened which will be hereafter referred to. In the department where the plaintiff worked there were two circular saws,--one known as a cut-off and the other as a rip saw. The cut-off saw was mounted on a table which was about 3 1/2 feet wide, 6 feet long, and 2 feet 5 inches high. The saw was about 20 inches from the end of the table at which the operator stood. It projected a few inches above the table, and the lumber which the operator desired to saw was placed upon a sliding carriage, which carriage was then pushed, with the lumber thereon, against the saw, by the operator, who would place his hands either behind the sliding carriage, or upon the lumber, and at safe distance to the left of the saw. Plaintiff was instructed in the use of the saw, and was directed to place both hands to the left of the saw while using it, in order to avoid danger. The rip saw was mounted upon a similar table, but it had no carriage. To the right of this saw was a movable gauge, which could be adjusted so as to rip the lumber accurately and smoothly to the required width. Designed as they were for special purposes, the saws were differently constructed. The teeth of the cut-off saw were smaller than in the rip saw, and so set that they made a wider path through the wood than did the rip saw. There was the same difference between them that there is in the ordinary crosscut and rip saws; the difference being due, of course, to the fact that one is made to cut across the grain of the wood, and the other with it. Prior to the time of the accident the plaintiff had used the cut-off saw in cutting the refuse matter, but he had not always followed the directions of his employer with reference to the proper place of putting his hands while using this machine. On the _____ day of May, 1892, plaintiff was directed by the foreman of the room to clean up the shop and saw up the refuse matter for kindling. This he proceeded to do, and while so engaged the foreman left the room. While engaged in his work, and during the absence of the foreman, one Garrity, who was employed about the mill, came to the plaintiff, and said he desired to use the cut-off saw, and plaintiff claims that Garrity ordered him to use the rip saw for cutting up the kindling. Newbury claims that, as he had never used the rip saw for this purpose, he asked Garrity how to use it, and that Garrity, in response to this request, went to the saw, pushed back the gauge so it would not interfere with the lumber, started it, placed a handful of strips upon the table, and, with one hand to the left and the other to the right of the saw, pushed them against it, and thus sawed the lumber into the required lengths for kindling. Plaintiff also claims that Garrity repeated this operation two or three times and said to him (plaintiff) that that was the way to do it. Newbury says that he proceeded with his work as directed, and that (to quote plaintiff's own language): “I was standing at the north end of the table, looking south. The north end of the table is about three feet north of the saw. I was working on the rip saw, crosscutting, the same as Dick Garrity had told me to, and while doing that I picked up another handful of the strips, and went to push them into the saw, and pushed one handful through all right, and the next time I tried it they wedged on the saw. The rip saw did not take out enough of the wood, but what it left there wedged on the sides of the saw, and it kind of made the saw jerk; and when the saw jerked it stopped it a little bit, and it caught a bigger stick, I suppose. I do not know exactly how it happened, but it was in that way. At the time the saw jerked there, my right hand was gripping the end of the lumber. The rip saw was going up in the center of the table, and I had both hands on the wood, and ran it along like that, and my right hand was on the right-hand end of the stick. In pushing it down that way, I was holding both ends, and they went down there and wedged, and it commenced to jerk; and I tried to push it on through, and it gave a heavy jerk, and threw my hand over onto the center of the saw, like that, and my hand was sawed off.”

The negligence charged against the defendant is the order of Garrity to do the work with the rip saw without informing him (plaintiff), who, by reason of his years, was without knowledge or experience sufficient to comprehend the character of the work, of the dangers incident thereto, and in ordering plaintiff to do the work he did without informing him that it was more dangerous than when done with the cut-off saw. It will be noticed that plaintiff does not claim that he was not furnished with proper tools with which to do his work. The cut-off saw is conceded to be a proper machine for the purpose, and it was the duty of the plaintiff to use it, in the absence of proper directions to use another. The negligence charged is that of Garrity, in ordering him to do the work with the rip saw without informing the plaintiff of the dangers incident to its use. But defendant cannot be held responsible for this unless it is to be charged with the negligence of Garrity. Whether it should be so charged or not is the principal question in the case to determine. We must look to the evidence relating to Garrity's authority. It appears that Samuel Martin was and is the vice president and general manager of the defendant corporation. Adolph Vieser was mill manager at the time of the accident, and O. A. Page was foreman of the department where plaintiff was employed. Page had charge of all the men in the room where plaintiff worked, and had authority to direct them as to their work. He had no authority to employ workmen, nor did he directly discharge them. It appears, however, that his requests for discharge were generally, if not universally, respected and acted upon. Martin employed the plaintiff, and directed him to go to Page's department, where he would be informed by Page as to his duties, and that he must obey Page. Garrity was a workman in the same room with plaintiff. He did machine work, principally, although he occasionally worked at the bench, on blinds. There is also testimony tending to show that early in the spring of 1892, while Page was absent from the factory, Garrity directed the men in the department in which plaintiff was engaged, and that at other times, when Page was out of the room, Garrity called plaintiff to his assistance, and directed him in his work, and that, when Page was not present, Garrity was in charge, and gave directions to the men. It also appears that, for two or three days prior to the accident, Newbury was assisting Garrity, and working under his directions. In order to charge defendant with knowledge of the fact that plaintiff was working under the direction of Garrity, the following testimony was delivered by plaintiff. “Dick Garrity wanted me to do something there one day,--me and Law Martin, I think it was, that was working there at the same time,--and we were not going to do it; we were going to do something else; and Dick went and saw Page about it, and Page told us to go ahead; that Dick was an old hand there, and we should mind him; he would tell us what to do. From that time to the time of the injury, I was in the habit of obeying Richard Garrity, when he ordered me to do it.” It also appears from the evidence that Martin was frequently present at the room where plaintiff worked; that he often noticed Garrity call Newbury to his assistance; and that he noticed Newbury was assisting, helping, and obeying Garrity; and that Garrity was the most experienced man in the department, except Page.

From this statement of the evidence, it will be seen that the controlling point in the case is the determination of the question as to whether the negligence of Garrity is to be attributed to the defendant. If Garrity was a mere fellow servant with plaintiff, then defendant is not responsible for his negligence. If, on the other hand, he is and was a vice principal, then defendant would be chargeable with his negligence. It is conceded by all parties that Martin and Vieser were vice principals. Whether Page is to be so classed or not is a more difficult question, but one not necessarily determinative of the case, for the real question is as to the authority of Garrity. Let it be conceded, for the purposes of the case, that Page was a vice principal, and yet there is no liability, for it is the negligence of Garrity, and not of Page, that is relied upon. What, then, was Garrity's authority? He had no power to employ or discharge men. The evidence tended to show that he had the right to call other employés to his assistance at all times, and that when Page was...