Nodland v. Kreutzer & Wasem

• Decision Date: 30 September 1918
• Docket Number: 30718
• Citation: 168 N.W. 889,184 Iowa 476
• Parties: CORNELL E. NODLAND, Administrator, Appellee, v. KREUTZER & WASEM, Appellant
• Court: Iowa Supreme Court

168 N.W. 889

184 Iowa 476

CORNELL E. NODLAND, Administrator, Appellee, v. KREUTZER & WASEM, Appellant

No. 30718

Supreme Court of Iowa, Des Moines

September 30, 1918

Appeal from Marshall District Court.--B. F. CUMMINGS, Judge.

THIS is an action by the administrator of the estate of Cornell Nodland, against the defendants, who were, at the time engaged in the manufacture of window sashes, screens, etc for injuries received by him while employed in said sash factory, which resulted in his death. At the time he was injured, deceased had hold of a piece of lumber about 20 inches in length and 5 inches in width, which he was having ripped by a circular ripsaw. The saw was about 10 inches in diameter, and revolved in a slot in the top of a table, or bench, to which the same was attached, and was operated by steam power. Deceased was holding the board against the saw when it caught in the teeth thereof, and was thrown against him, striking him in the abdomen, and fatally injuring him. The saw, when in motion, extended a few inches above the level surface of the table, on which boards or other material were placed, for the purpose of being worked into shape for use in the factory. Suspended directly over the saw, and attached to a crossbeam, or the joist, was a 4x4 piece of timber, arranged so that a wooden guard for the saw might be attached thereto by means of a thumbscrew. The exact construction of the guard is not shown; but a slot was provided in the arm, by which same was attached to the 4x4 so that it could be adjusted to the varying thicknesses of the material to be ripped. At the time of the accident, the guard was not in place. Testimony tended to show that it was usually kept on the table, or hanging on a post immediately adjacent thereto.

Deceased had been, at different times, previously employed by defendant, the last time commencing the latter part of February, 1913, and continuing up to April 1st, the date of the accident. He was experienced in the work he was doing. The record before us does not disclose whether the guard was used at any time while deceased was employed by defendant. One witness stated that Nodland said he would not use the guard, as it was in the way, and that a guard was unnecessary, if the operator knew how to operate the saw. Defendant knew that the saw was unguarded, and that deceased habitually operated the same with the guard removed. Whether the guard was removed by deceased, or was at any time in place while he was employed by defendant, is not shown. Judgment was entered upon the verdict in favor of the plaintiff for $ 900. Defendant appeals.

Affirmed.

Binford & Farber, for appellant.

Carney & Carney and Bradford & Johnson, for appellee.

PERSTON, C. J., LADD, EVANS, SALINGER, and STEVENS, JJ., concur.

OPINION

PER CURIAM.

I. At the close of all the testimony, counsel for defendant moved for a directed verdict, upon the ground that deceased had assumed the risk of operating the saw without shield or proper guard, and upon the ground of the contributory negligence of deceased. It is conceded by counsel that it was the duty of defendant, under the provisions of Section 4999-a2 of the Supplement to the Code, 1913, to properly guard the saw; but it is the contention of counsel that this duty had been fully performed by defendant. It is not claimed that the guard provided, which was constructed wholly of wood, was in place at the time of the accident; and the jury must have for that defendant knew that the saw was habitually operated by deceased without shield or guard. Some of the witnesses, who had been employed at the factory for several months, testified that they had never seen the guard in question about the premises; but it may be assumed that a guard constructed as above stated was furnished by defendant for use, and that deceased had knowledge thereof; that it could readily be put in place, and was so constructed that it could be adjusted to the varying thicknesses of the material to be sawed. The duty, under Section 4999-a2, of guarding saws, planers, cogs, and other dangerous machinery, is placed upon the "owner, agent, superintendent or other person having charge of any manufacturing or other establishment where machinery is used."

It is conceded by counsel for appellee that deceased, at the time of the accident, was a foreman in defendant's factory. His duties as foreman appear to have been, largely, to direct and instruct the workmen employed about the premises. Mr. Wasem was, however, much of the time present, taking part in the management and direction of the employees and of the work which was being done. The alleged contributory negligence of deceased consisted of his neglect and failure to place the shield or guard in position, and in operating the saw without having done so. No claim is made that deceased was otherwise negligent. The board which he was holding was caught by the teeth of the revolving saw and thrown against him while he was apparently in the exercise of due care, except the failure to use the guard provided. It is, however, claimed by counsel for appellee--and evidence was offered tending to show that fact--that the shield was improperly constructed, and would not have prevented the accident in question if the same had been in place. Section 4999-a3 of the Supplement to the Code, 1913, provides:

"That in all cases where the property, works, machinery or appliances of an employer are defective or out of repair, and where it is the duty of the employer from the character of the place, work, machinery or appliances to furnish reasonably safe machinery, appliances or place to work, the employees shall not be deemed to have assumed the risk, by continuing in the prosecution of the work, growing out of any defect as aforesaid, of which the employee may have had knowledge when the employer had knowledge of such defect, except when in the usual and ordinary course of his employment it is the duty of such employee to make the repairs, or remedy the defects. Nor shall the employee under such conditions be deemed to have waived the negligence, if any, unless the danger be imminent and to such extent that a reasonably prudent person would not have continued in the prosecution of the work."

The court instructed the jury that deceased was a foreman in the factory, charged with the duty to make repairs and remedy defects in the machinery installed and in use therein; but charged that deceased should not be deemed to have waived the negligence of defendants, if any, unless the danger in the operation of the saw without proper shield or guard, was so imminent that a reasonably prudent person would not have continued in the prosecution of the work. The sections of the statute referred to have been repeatedly construed and applied by this court. Stephenson v. Sheffield B. & T. Co., 151 Iowa 371, 130 N.W. 586; Waddell v. Burlington Basket Co., 159 Iowa 736, 140 N.W. 805; Miller v. Cedar Rapids S. & D. Co., 153 Iowa 735, 134 N.W. 411; Verlin v. United States Gypsum Co., 154 Iowa 723, 135 N.W. 402; Woodworth v. Iowa Cent. R. Co., 170 Iowa 697, 149 N.W. 522; Correll v. Williams & Hunting Co., 173 Iowa 571, 155 N.W. 982; Petersen v. McCarthy Imp. Co., 175 Iowa 85, 156 N.W. 801; Plew v. Horrabin & Co., 176 Iowa 584, 157 N.W. 453; Winn v. Town of Anthon, 179 Iowa 620.

In Correll v. Williams & Hunting Co., supra, we said "Under this statute, the servant assumes none of the risks referred to in the statute that arise from the failure of the master to discharge the duties of a master. Under such circumstances, the servant does not, by continuing to work, assume the risk incident to such conditions, except as...