Nugent v. Cudahy Packing Co.

• Citation: 102 N.W. 442,126 Iowa 517
• Parties: NUGENT v. CUDAHY PACKING CO.
• Decision Date: 09 February 1905
• Court: United States State Supreme Court of Iowa

126 Iowa 517

102 N.W. 442

NUGENT

v.CUDAHY PACKING CO.

Supreme Court of Iowa.

Feb. 9, 1905.

Appeal from District Court, Woodbury County; Wm. Hutchinson, Judge.

Action to recover damages for personal injuries received by plaintiff while in defendant's employ. Verdict and judgment for plaintiff in the sum of $1,999 and costs. Defendant appeals. Affirmed.M. L. Sears, for appellant.

Hubbard & Burgess and F. E. Gill, for appellee.

McCLAIN, J.

At the time of receiving the injury complained of, plaintiff was in defendant's employ as a carpenter, and was in charge of workmen engaged in the general business of repairing an old building. The entire work was being done under the supervision of one Casey, who was defendant's general superintendent for the work. The particular work being done at the time of the accident by plaintiff and the men under his charge was that of letting the weight of the upper floors down upon a post resting on a new brick pier which had been constructed by other workmen to support such post and the weight of the floors resting upon it. During the construction of the pier the floors had been raised and held up by means of jackscrews. The pier, constructed of brick and cement, had been completed on Saturday; and, on Monday following, plaintiff went with his men for the purpose of letting the weight of the building down upon the pier. Water had accumulated around the pier, and plaintiff, being apprehensive that the cement was not sufficiently set, tried some of it with his fingers, and, finding it still soft, consulted Casey as to what he should do; expressing a fear that the pier was not solid enough to support the weight which was to be put upon it. Casey expressed an opinion that the cement in the interior of the pier was sufficiently set, and directed plaintiff to proceed with the work. Thereupon the jackscrews supporting the weight of the floors above were simultaneously loosened, so that the weight was thrown on the supporting post resting on the pier. At this time there was a “chuck,” or creaking noise, and immediately afterward plaintiff was struck by one of the pieces of the bridging; that is, one of the short crosspieces (a stick 2 by 4 inches in size and 18 inches long) placed between the joists to support the flooring. The injuries complained of resulted from this accident. The negligence alleged was that of Casey, the superintendent, in directing plaintiff and those under his charge to remove the jackscrews supporting the floors above, and thereby causing the timbers in the floors to settle and become dangerous and unsafe, and also the negligence of defendant in failing to furnish plaintiff a reasonably safe place to work, in that the place for performance of plaintiff's work was made dangerous and unsafe by the order of the superintendent. The principal contentions for appellant are that, as plaintiff was engaged in the work of repairing, there was no obligation on the part of defendant to furnish him a safe place to work; that plaintiff assumed the risk incident to the work being done; and that he was guilty of contributory negligence. With reference to each of these principal contentions, complaint is made as to the instructions of the court, and failure of the court to direct a verdict for defendant on motion, or to set aside the verdict as without support in the evidence. It will not be necessary to set out the particular instructions or rulings complained of, for the errors urged by appellant relate rather to the theory on which the case was tried, than to specific errors committed, and we can satisfactorily dispose of the case by pursuing the method of treatment adopted by counsel for appellant in his argument.

1. It is conceded that the pier was not constructed under plaintiff's direction, but by workmen composing a separate force, and engaged in a different department of the work, and that if the fall of the bridging was due to the giving way of the pier, and there was negligence on the part of defendant's superintendent in directing plaintiff to let down the weight upon it, then, omitting any question for the present as to the assumption of risk or contributory negligence, defendant was liable for the injury to plaintiff. It is argued that the evidence shows the fall of the piece of bridging to have been due to the lowering of the floors above by letting down the jackscrews, and not by the giving way of the pier. But the evidence clearly tended to show that it was not until the jackscrews had been completely let down, and some of them removed, so that the weight rested entirely on the pier, that there was a sudden noise, indicating that it was giving way, and that the fall of the piece...