Obenchain v. Harris & Cole Bros.
| Decision Date | 16 June 1910 |
| Citation | 126 N.W. 960,148 Iowa 86 |
| Court | Iowa Supreme Court |
| Parties | OBENCHAIN v. HARRIS & COLE BROS. |
OPINION TEXT STARTS HERE
Appeal from District Court, Black Hawk County; C. E. Ransier, Judge.
Action at law to recover damages for personal injury. Judgment for plaintiff, and defendants appeal. Affirmed.J. E. Williams, for appellants.
Pike & Knapp, for appellee.
The defendants are the proprietors of a factory in which they use various kinds of wood working machinery. The plaintiff was employed in one of their shops, and after he had served them about six days was injured in the manner hereinafter indicated.
The evidence on his part tends to show that at the time of the accident he was 39 years of age, and prior to taking up this employment had been engaged in various lines of work. He had seen some service as a farmer, as a carpenter, as a motorman on the street cars, and as operator of an interlocking switch. He had also on former occasions worked for defendants in their glueroom and in piling lumber. He entered the service in which he was injured about March 4, 1908, and was told by defendants that their man who had operated a circular combination saw or ripsaw had quit, and for the time being they would put him at that work. Upon his statement that he had no experience with such machinery he was told he would soon become used to it, and was directed to rip certain boards into sizes suitable for some device that was being manufactured in the shop. He was given general directions concerning the cutting of the boards and instructed that if he stood directly behind a board when sawing there was liability of its “kicking back” and striking him in the stomach, and to avoid this danger he should remember not to stand directly behind the piece being fed into the saw. No other warning was given him. The saw was not protected by a hood or shield, nor was the machine provided with a “spreader” or “divider” to prevent the gripping or pinching of the boards upon the saw. On the sixth day of this employment, a sudden moving or twisting of a board which he was then sawing had the effect to bring his hand against the revolving saw, resulting in an injury by which he lost a thumb and two fingers. According to his testimony, the board did not “kick back,” but “jumped” or twisted to one side, a movement which the witnesses ascribed to the pinching of the board on the saw blade. The injury received is charged to defendants' negligence, and recovery of damages therefor is asked. The specifications of negligence are that defendants, knowing him to be inexperienced and unskilled in such employment, put him to work with said saw without proper instruction or warning concerning the danger attending its operation. It also alleges that defendants neglected to provide plaintiff a suitable and safe place to work, and failed to provide for his use in such service safe, suitable, and proper machinery and tools, and neglected and failed to furnish any guard or protection against such accidents as provided by the statute, by reason of which negligence it is claimed that plaintiff, without fault on his part, was injured as above stated. The defendants, denying the allegations of the petition, further pleaded in the following words: “That by reason of his employment and the services plaintiff was engaged to perform for the defendants, he assumed the risk incident to such employment, and that one of the risks of such employment was the doing of the acts alleged in his petition, and he assumed by reason of such employment the injury of which he complains.” The cause was tried to a jury, which returned a verdict for plaintiff, and from the judgment rendered thereon the defendants appeal.
In argument in this court appellants' counsel confines his attention to four several propositions, which we shall briefly consider in the order of their statement in the brief.
1. It is said that the evidence without dispute shows plaintiff to have been warned against the very peril of which he complains, and that the allegation of negligence in this respect is conclusively negatived. We do not so read the record. The danger of which he was warned was that of a board being thrown backward from the saw and against his person, and not that of a board being thrown forward or upward drawing his hand into contact with the saw. As we understand the evidence of the construction and practical operation of the saw, these are distinct perils arising from different causes, or, if not arising from different causes, they are clearly different perils, and plaintiff's testimony tends to show that he was instructed as to one only. The very phrase “kicking back” indicated a force moving from the saw in the direction of the operator and not from the operator forward in the direction of the saw. The danger suggested was that of injury from a flying board, and the instruction to stand on one side of the line of its probable flight excluded the idea that he was then being warned of the liability of his hand being drawn or thrown forward against the saw. The sufficiency of the warning is not so clearly established as to enable the court to dispose of it as a matter of law, and there was no error in submitting...
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