Overhouser v. American Cereal Co.

• Decision Date: 30 October 1902
• Citation: 92 N.W. 74,118 Iowa 417
• Parties: HENRY OVERHOUSER, Administrator, Appellant, v. AMERICAN CEREAL COMPANY et al, Appellees
• Court: Iowa Supreme Court

92 N.W. 74

118 Iowa 417

HENRY OVERHOUSER, Administrator, Appellant, v. AMERICAN CEREAL COMPANY et al, Appellees

Supreme Court of Iowa, Des Moines

October 30, 1902

Appeal from Linn District Court.--HON. W. G. THOMPSON, Judge.

ACTION for damages. Judgment was entered for defendants on a directed verdict, and plaintiff appeals.

Reversed.

Jamison & Smyth for appellant.

Powell & Harmon and Hubbard, Dawley & Wheeler for appellees.

OPINION

LADD, C. J.

About the 19th day of November, 1899, a cellar was being excavated in a lot belonging to the American Cereal Company. The material taken therefrom, consisting of dirt and rock, was hauled about three blocks distant across the Cedar river, and dumped between it and First street of Cedar Rapids. The street was paved with brick a width of about thirty feet between the curbings. A crossing of dirt over the curbing was made near its intersection with F avenue, another to the south about half way to E avenue, and another used at B avenue, where there was no curbing. Stone and earth dropped from the loads in going over the crossings and in coming back; also, in driving along the street, stone which had caught on the hounds and reaches of the wagons fell off. The evidence tended to show that rocks were thus scattered the entire distance from F to E avenue from the curbing out some twenty feet to the east, though thickest near the curbing. About twenty-five teams were engaged in the work, and hauled an average of fifteen loads a day each. The deceased was riding a bicycle home from his work shortly after 12 o'clock, along First street, when the front wheel struck a small stone about the size of a goose egg, throwing his feet from the pedals, and, before he could regain control swerved, and ran against a larger stone, when he was thrown so that he fell upon his back, and never regained consciousness.

I. A H. Connor & Co. had an oral contract with the American Cereal Company to do such work as it might require in the manner following: Connor & Co. bought all material, employed all help, had charge of the work, and paid the bills. The account was presented to the cereal company at the end of each week and the firm reimbursed on Saturday the week following for what it had expended, and allowed five per cent. on the amount for services rendered. When dirt was excavated, Connor & Co. disposed of it, and accounted for the proceeds. The evidence tended to show that the cereal company gave no direction as to the men or teams to be employed, nor the machinery to be used, and that Connor & Co. determined the method to be adopted in making any particular improvement. With respect to this particular job, Connor testified: "In the mean time they had bought this ground, and there was excavation done, and there is still a large hole in the ground without any building there. They ordered us to do it,--to take it out,--and we took it. We didn't know what it was for. * * * They told us to get that excavating done. Q And you used your own judgment as to the means of doing it, and how to do it, and the employment of teams, did you not? A. Of course, we did that part of it as we thought best" From this and other evidence introduced the jury might have found that, in respect to the means employed to perform work required of the firm, it was entirely independent of the control of the cereal company. It might interrupt the work, or change the plans, but in carrying these out the jury may have found such means were adopted as were selected by Connor & Co. independent of the wishes of the cereal company; that Connor & Co. were to accomplish a certain result according to their own methods, without being subject to the control of the cereal company, save as to the result. See Humpton v. Unterkircher, 97 Iowa 509, 66 N.W. 776; 16 Am. & Eng. Enc. Law (2d Ed.) 191. The test oftenest resorted to in such cases is the ascertainment of whether the employe represents the master as to the result of the work or only as to the means. If only as to the result, and in the employment of the means he acts entirely independent of the master, he must be regarded as an independent contractor. Without discussing it in detail, we think the evidence such as that this issue should have been submitted to the jury.

II. Contrary to appellees' contention, the evidence tends to show not only that rocks were dropped in the street from wagons in the defendants' service, but the particular stone last struck was identified as having come from the excavation; and as one witness declared that "these stones that were on the street were stones that we left on the hounds and reaches of the wagons, and when we would come out they would come off," the jury might have found that the small stone came from the same source.

III. It may be, as contended, that the city was required to keep its streets in a reasonably safe condition for travelers with horses, teams, and carriages, and no care in addition thereto was exacted for its use by bicycle riders. See Wheeler v City of Boone, 108 Iowa 235, 78 N.W. 909; Lee v. City of Port Huron (Mich.) 128 Mich. 533, 87 N.W. 637, 55 L.R.A. 308; Leslie v. City of Grand Rapids (Mich.) 120 Mich. 28, 78 N.W. 885; Richardson v. Inhabitants of Danvers, 176 Mass. 413 (57 N.E. 688, 50 L.R.A. 127, 79 Am. St. Rep. 320). In the last case it was said that: "A bicycle is of but little use in wet weather or on frozen ground. Its great value consists in the pneumatic tire; but this is easily punctured, and no one who uses a wheel thinks of taking a ride of any distance without taking his kit of tools with him. A hard rut, a sharp stone, a bit of coal or glass, or a tack in the road may cause the tire to be punctured, and this may cause the rider to fall, and sustain an injury. It would impose an intolerable burden upon towns to hold them to keep their roads in such a state of repair and smoothness that a bicycle could go over them with assured safety. " But a municipality has the authority to care for its streets, keep them...